Champs v State of Queensland (Queensland Police Service) [2023] QIRC 66

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Champs v State of Queensland (Queensland Police Service) [2023] QIRC 066 PARTIES: Champs, Lee (Appellant) v State of Queensland (Queensland Police Service) (Respondent) CASE NO: PSA/2022/953 PROCEEDING: Public Service Appeal – Appeal against a fair treatment decision DELIVERED ON: 28 February 2023 MEMBER: HEARD AT: Pidgeon IC On the papers ORDER: That pursuant to s 562C(1)(c) of the Industrial Relations Act 2016 (Qld), the deemed decision of 3 October 2022 is substituted with a decision that the overpayment be waived. CATCHWORDS: PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – PUBLIC SERVICE APPEAL – appeal against a fair treatment decision – where the Appellant applied for an exemption to the Respondent’s mandatory vaccination requirements under the Queensland Police Service Instrument of Commissioner’s Direction No. 14 – where the Appellant’s request for an exemption was refused by the Respondent – where the Respondent says the Appellant incurred an overpayment relating to a request for leave without pay – where the overpayment occurred while the Appellant’s exemption application -- 1 of 17 -- 2 was pending – where the Appellant requested that the overpayment be revoked or waived in accordance with the Queensland Police Service Guideline – COVID-19 Vaccination Exemption Process – where the Respondent upheld the overpayment – where the Appellant lodged a grievance – where a deemed decision was made to uphold the overpayment – where the Appellant sought an internal review against the deemed decision to uphold the overpayment – where a further deemed decision was made to uphold the overpayment following an internal review – decision set aside – decision returned to decision-maker LEGISLATION AND OTHER INSTRUMENTS: Appeals Directive 07/20 cl 5 Directive 11/20: Individual employee grievances policy cl 5 Industrial Relations Act 2016 ss 562B, 562C Police Service Administration Act 1990 s 4 Public Service Act 2008 ss 137, 194 Queensland Police Service Guideline – COVID-19 Vaccination Exemption Process cls 17, 18, 29 Queensland Police Service Instrument of Commissioner’s Direction No. 14 cls 10, 11, 12 Special Leave Directive 5/17 cl 8 Reasons for Decision Introduction [1] Ms Lee Champs (the Appellant) is employed by the State of Queensland (Queensland Police Service) (the Respondent) as a Station Client Service Officer, classification AO3.4, at Southport Police Station. Ms Champs was permanently appointed to the role on 4 August 2008 and her position exists within the Southport Division of the Gold Coast Central Patrol Group, Gold Coast District, South-eastern Region. [2] On 7 April 2022, Ms Champs applied for an exemption from receiving the COVID-19 vaccine. On 22 June 2022, Ms Champs received the reasons refusing her request from the Vaccine Exemption Committee (VEC) via an email from Inspector Scott Knowles. -- 2 of 17 -- 3 [3] On 17 May 2022, Ms Champs received an email from Queensland Shared Services (QSS) informing her that she had incurred an overpayment of $4,1892.08, relating to a request for leave without pay for the period between 4 April 2022 to 13 May 2022. Ms Champs says that at no time did she make an application for leave without pay. [4] On 13 June 2022, Ms Champs received an email from QSS informing her that she had incurred an overpayment for the period 14 May 2022 to 3 June 2022 relating to a request for backdated sick leave that was submitted. Ms Champs says that at no time did she make an application for sick leave for that period, nor was she sick during that period. [5] On 17 June 2022, Ms Champs’ union wrote to Inspector Scott Knowles requesting clarification on the overpayment and that the overpayment be waived or revoked. On 1 August 2022, Inspector Knowles replied, stating that the overpayment stands. [6] Following receipt of the decision of 1 August 2022, Ms Champs says that she lodged a grievance on 8 August 2022 and that she did not receive an outcome regarding that grievance and so a deemed decision was taken to occur on 5 September 2022. Ms Champs says that she requested an internal review of the deemed decision of 5 September 2022 and that when she did not receive a reply, a deemed decision was taken to occur on 3 October 2022. It is that decision which Ms Champs appeals. [7] Ms Champs submits that from 7 April 2022 until the date she received reasons for the decision to accept or refuse her exemption application, she expected that she would continue to be paid her normal wage as per the exemption Guideline ‘COVID-19 Vaccination Exemption Process’.1 Ms Champs says that the Guideline provides that ‘An employee applying for an exemption will be treated as if they are exempt until a decision is made whether the application will be supported or refused.’ Ms Champs says that under the Guideline, she should have been treated as exempt from 7 April 2022 to 22 June 2022. [8] Ms Champs seeks the following relief: In accordance with s 562C of the Industrial Relations Act 2016, I am respectfully seeking for the decision to be set aside and a substituted decision be made that the overpayment be waived, achieved by the Respondent submitting an amended leave application for the period 4 April – 22 June, omitting the unpaid leave type for what was applied for all employees considered exempt from complying with the Commissioner’s Direction No. 14. Is the Appellant entitled to appeal? [9] Section 194 of the Public Service Act 2008 (the PS Act) lists various categories of decisions against which an appeal may be made. Section 194(1)(eb) provides that an 1 Appeal notice filed 25 October 2022, Attachment 1. -- 3 of 17 -- 4 appeal may be made against 'a decision a public service employee believes is unfair and unreasonable (a fair treatment decision)'. [10] The appeal notice was filed with the Industrial Registry on 25 October 2022 within 21 days of the deemed decision being taken to have occurred on 3 October 2022. I am satisfied that the Appellant may appeal the decision. Appeal principles [11] Section 562B(3) of the Industrial Relations Act 2016 (the IR Act) provides that 'the purpose of the appeal is to decide whether the decision appealed against was fair and reasonable'. [12] Findings made in the decision which are reasonably open on the relevant material or evidence before the decision-maker should not be expected to be disturbed on appeal. [13] A public service appeal is not an opportunity for a fresh hearing, but a review of the decision arrived at by the decision-maker. To determine the appeal, I will consider whether the deemed decision of 3 October 2022 was fair and reasonable. [14] In deciding this appeal, s 562C(1) of the IR Act provides that the Commission may: (a) confirm the decision appealed against; or … (c) for another appeal – set the decision aside, and substitute another decision or return the matter to the decision maker with a copy of the decision on appeal and any directions considered appropriate. The legal framework The PS Act [15] The PS Act relevantly states: 137 Suspension (1) The chief executive of a department may, by notice, suspend a person from duty if the chief executive reasonably believes— (a) for a public service officer—the proper and efficient management of the department might be prejudiced if the officer is not suspended; or (b) for a public service employee—the employee is liable to discipline under a disciplinary law. … (9) In suspending a public service employee under this section, the chief executive must comply with— (a) the principles of natural justice; and (b) this Act; and (c) the directive made under section 137A. -- 4 of 17 -- 5 … 194 Decisions against which appeals may be made (1) An appeal may be made against the following decisions— … (eb) a decision a public service employee believes is unfair and unreasonable (a fair treatment decision); Appeals Directive 07/20 [16] Furthermore, Appeals Directive 07/20 relevantly states: 5. Who may lodge a public service appeal 5.2 An appeal may only be lodged by the following persons: … (h) for a decision under section 194(1)(eb) (fair treatment decision)–a public service employee who is aggrieved by the decision. The public service employee should comply with the agency’s complaints management process prior to lodging the appeal. Directive 11/20: Individual employee grievances policy [17] In addition, Directive 11/20: Individual employee grievances policy (Directive 11/20) relevantly states: 5. Matters that can be subject of an individual employee grievance 5.1 An individual employee grievance under this directive is a grievance submitted by a current public service employee who has an honest belief, based on reasonable grounds, that: (a) an administrative decision, which they are aggrieved by, is unfair and unreasonable … Queensland Police Service Instrument of Commissioner’s Direction No. 14 [18] Queensland Police Service Instrument of Commissioner’s Direction No. 14 (Direction 14) was issued by the Commissioner of Police on 14 December 2021 through the authority vested in the Police Service Administration Act 1990. [19] Direction 14 replaced Queensland Police Service Instrument of Commissioner’s Direction No. 12 (Direction 12). Each direction has the same substantive information, apart from the dates by which vaccinations are to be received. [20] Direction 14 relevantly states: Requirements for vaccination against COVID-19 10. Unless a police or staff member is exempt under paragraph 11 or 13, all police officers and staff members must: a) receive at least one dose of a COVID-19 vaccine by 4 October 2021; b) receive a second dose of a COVID-19 vaccine by 17 December 2021, or if ineligible to do so by that date, within 48 hours of becoming eligible to do so; -- 5 of 17 -- 6 c) receive a booster dose of a COVID-19 vaccine no more than one month after they become eligible to do so, in accordance with ATAGI’s advice on the use of a booster dose of COVID-19 vaccine at that time, or if already eligible to do so, no more than one month after the date of this direction; and d) show or provide evidence of receiving a COVID-19 vaccine (including a booster) to their direct report and record the information on Employee Self Service within two days of receiving the vaccine, unless otherwise agreed with their direct report. Exemption from requirements for vaccination against COVID-19 11. A police officer or staff member is exempt from the requirements in paragraph 10 if the Commissioner of Police (or delegate) grants an exemption on the basis that the police officer or staff member is unable to be vaccinated due to a medical contraindication. 12. A police officer or staff member who applies for an exemption under paragraph 11 must provide to the Commissioner of Police (or delegate): a) a letter from a treating doctor or specialist outlining: (i) the condition which makes it unsafe for the police officer or staff member to receive all available COVID018 vaccines; and (ii) whether the condition is temporary in nature, and, if so, the duration; and b) any other supporting evidence requested. Queensland Police Service Guideline – COVID-19 Vaccination Exemption Process [21] On 21 September 2021, and as an addendum to Direction 12, the Respondent issued Queensland Police Service Guideline – COVID-19 Vaccination Exemption Process. The Guideline relevantly states: Application for exemption process Employee responsibility … 17. An employee applying for an exemption will be treated as if they are exempt until a decision is made whether the application will be supported or refused. Special Leave Directive 5/17 [22] Finally, Special Leave Directive 5/17 relevantly states: 8. Discretionary leave 8.2 A chief executive may approve unpaid leave for employees for any purpose and for any duration. The appeal Submissions Respondent’s submissions [23] The Respondent says that Ms Champs’ position is classed as a frontline support staff member and as such, she is subject to the criteria associated with Direction 14 and the requirement to be vaccinated. -- 6 of 17 -- 7 [24] With regard to exemptions, the Respondent points to paragraphs 11 and 12 of Direction 14 (see above at [20]) and adds: [8] When seeking a medical exemption, the employee must provide information from the treating physician on the nature of the persons [sic] condition and why it is unsafe to receive the vaccination and whether the condition is temporary in nature and the duration of the condition. [9] Further exemption from vaccination is also available for a genuine religious reason and exceptional circumstances.2 Exemption process [25] The Respondent says that in September 2021, as an addendum to Direction 12 (vaccination for COVID-19), Guidelines were issued explaining the process for seeking an exemption against having the vaccinations for COVID-19. The Guidelines also identified that police officers and staff members who were not exempt would be required to: • Receive at least one dose of Covid-19 vaccine by 4 October 2021, • A second dose by 23 January 2022, and • Provide proof to their manager of one or both vaccinations.3 [26] The Respondent says that exemption applications were to be made online with supporting documentation that could be assessed by the VEC comprising senior management, including the Superintendent from Safety and Wellbeing Division, an independent medical specialist and a representative from an industrial body nominated by the employee seeking exemption. [27] The Respondent says that cl 17 of the Guidelines (see above at [21]) is significant in the context of the Guideline as it has direct relation to the consequences of either failure to be vaccinated in accordance with the Direction or failure to be granted an exemption. Until the VEC provides a response to the exemption application, the employee is deemed to be exempt. [28] The Respondent says that on 14 January 2022, the Australian Technical Advisory Group on Immunisation (ATAGI) information was issued to senior Queensland Police Service (QPS) management and stated: (a) There is no requirement to delay vaccination other than for the period of acute infection, (b) Boosters can be received once an employee has recovered from acute infection, (c) Any person who is immunocompromised and therefore at risk should get the booster as soon as they are well, 2 Respondent’s submissions filed 27 January 2023, [8]-[9]. 3 Ibid [12]. -- 7 of 17 -- 8 (d) Any employee seeking a delay in getting a booster will need to submit an exemption with a suitably detailed medical certificate. Medical complications as part of the exemption must fall within the range of the ATAGI identified concerns or other medical complications.4 [29] In May 2022, the Respondent says that further information was issued to QPS management for dissemination that: … members (of the QPS) who have had their primary course i.e., the 1st and 2nd dose of a Covid-19 vaccine and then contract Covid-19 will not be required to have their booster for 12 weeks after the date they contracted the virus. PLEASE NOTE – this does not apply to members who have not completed their primary course (1st and 2nd doses) course.5 [30] On 20 June 2022, the VEC provided the following statement of reasons in respect to the VEC and Deputy Commissioner’s decision not to support Ms Champs’ vaccination exemption application: Ms Browitt6 provided a doctor’s certificate stating that as she had been diagnosed with COVID-19, she was exempt for 4 months based on ATAGI advice (attached). The ATAGI advice in relation to the 4 month delay following COVID-19 infection was clear that while vaccination can be deferred, there was no requirement to delay vaccination. It also specifically states that a person may choose to get vaccinated if they have a job that requires it or puts them at a greater risk of exposure to COVID-19. While the website has since been updated, I have included a screenshot of the advice regarding the 4 months from the ATAGI website below that we have kept on file. …. Based on this advice, the QPS adopted the position that members should be vaccinated as soon as they are able following COVID-19 vaccination7 and an exemption would not be granted. This advice was sent to the AC and ED offices on 14 February 2022. At the time of Ms Browitt’s follow up exemption request, ATAGI advice had been updated to state the following: Vaccination after testing positive for COVID-19 Everyone in Australia aged 5 years and over should wait 3 months between testing positive for COVID-19 and their next recommended vaccine dose. This is to optimise vaccine protection. A longer gap between infection and vaccination is likely to lead to a better immune response and result in longer protection from reinfection. The next scheduled dose of COVID-19 vaccine should be given as soon as possible after 3 months. You should still have all the recommended doses for your age and health needs. 4 Email from the Office of the Deputy Commissioner, Strategy and Corporate Services to senior Queensland Police Service management dated 14 January 2022. 5 Email from the Deputy Commissioner, Strategy and Corporate Services to Queensland Police Service management dated 11 May 2022. 6 For clarity, Ms Browitt is a previous name used by Ms Champs. 7 In context, the word ‘vaccination’ appears to be a typographical error and should instead read ‘infection’. -- 8 of 17 -- 9 People might choose to be vaccinated earlier than 3 months if they: • Are significantly immunocompromised and may be at greater risk of getting Covid- 19 again • Have a job that requires them to be vaccinated • Have a job that puts them at greater risk of being exposed to COVID-19. People should delay vaccination until they have recovered from acute illness. The advice reiterates that that [sic] people may choose to get vaccinated if they have a job that requires it or puts them at a greater risk of exposure to COVID-19. It also states that people should ‘still have all the recommended doses for your age and health needs’. Based on this advice, the QPS adopted the position that members who have had their primary course (1st and 2nd dose), which is recommended for all people aged 5 or older, can delay their booster dose for 3 months. This advice was sent out on 11 May 2022 to the AC and ED offices. As Ms Browitt has not received her primary course, she does not meet the criteria for exemption/delay in vaccination. Kind regards, On behalf of the Chair Vaccination Exemption Committee … [31] The Respondent says that the position adopted by the QPS, that those who had had their primary course of vaccination could delay their booster dose, did not apply to Ms Champs as she had still not received the primary doses. The Respondent says that there was no reasonable excuse apart from a contraindication or religious exemption for the Appellant not to have undertaken the primary 1st and 2nd dose of COVID-19 vaccines. Chronology of events [32] The Respondent says that there was significant interaction between Ms Champs and the QPS in respect of her medical conditions between September 2021 and November 2022. [33] The Respondent says that Ms Champs had a temporary medical-related exemption from the VEC upon application until 10 November 2021. The exemption was subject to Ms Champs remaining away from the workplace whilst unvaccinated and on leave and being vaccinated in compliance with Direction 12 prior to returning to work. [34] The Respondent says that Ms Champs was then absent on different leave types from 11 November 2021 with sick leave certificates provided for some, but not all, of that period and with unpaid leave from 16 March 2022 due to insufficient leave accruals. [35] The Respondent says that management submitted a backdated ‘leave without pay’ to QSS on 9 May 2022 for the period of 4 April 2022 to 30 April 2022 to minimise any -- 9 of 17 -- 10 overpayment for the Appellant. However, the Respondent says that an overpayment was generated for the periods 4 April 2022 to 13 May 2022 and 14 May to 3 June 2022. [36] The Respondent says that on 11 April 2022, Ms Champs made an application to the VEC for another exemption on the basis that she had again contracted COVID-19. Ms Champs had sought to come back to work around this time stating that she had had COVID-19 and had applied for an exemption. The exemption was not supported and the VEC decision was sent to her via the Superintendent of the Region on 18 May 2022. [37] On 26 May 2022, Ms Champs was advised that there had been an overpayment for 4 April 2022 to 13 May 2022 by the QSS. The Officer in Charge of Ms Champs’ station had sought to apply for the leave with QSS on behalf of Ms Champs to offset any further overpayments as she had exhausted her leave entitlements. [38] The Respondent says that during June 2022 up to early July 2022, there was communication between Ms Champs’ union and the QPS and the VEC statement of reasons as to why the exemption was not approved was provided to Ms Champs. [39] On 12 July 2022, Ms Champs’ Inspector, Central Patrol Group emailed Ms Champs to advise that the ATAGI period had passed, and that she was required to receive the primary vaccines, i.e. 1 and 2 vaccines in accordance with the Commissioner’s Direction, and that a response was required back to the Inspector by 15 July 2022. This was followed by a phone call to Ms Champs on 14 July 2022 where a voicemail was left reiterating the requirement for Ms Champs to receive the vaccines. [40] On 14 July 2022, Ms Champs provided advice that she had contracted COVID-19 and was not able to receive a vaccination. The Respondent says that legal advice to the Region was that as Ms Champs had not been vaccinated with the primary vaccines, she did not meet the conditions for exemption. The VEC reinforced the position with Ms Champs that she was not eligible for exemption as she had failed to comply with Direction 14. The Respondent says that the ATAGI advice was clear and the application of the medical advice that was provided through ATAGI was adopted and therefore the three-month deferral from contracting COVID-19 to receiving a booster vaccination was only available for those who had received their first primary vaccinations. [41] The Respondent says that communication between the Together Union and the QPS regarding the overpayments to Ms Champs was not supported by QPS because: • Ms Champs was not eligible to access the exemption provisions of the Commissioner’s Direction; • Ms Champs had not commenced her primary course of vaccination; and • ATAGI advice was used in respect of delaying the vaccination, however there is no requirement to wait three months. -- 10 of 17 -- 11 [42] The Respondent says it is evident that Ms Champs provided medical certificates and took both recreation and long service leave in an effort not to be vaccinated in accordance with Commissioner’s Direction 12, and then Direction 14. [43] Under s 4.9(3) of the Police Service Administration Act 1990, the Direction of the Commissioner was to be complied with. Information from QPS and Ms Champs shows that between 10 November 2021 and 31 March 2022, Ms Champs had every opportunity to receive vaccinations as were required by the Direction. During this time, Ms Champs accessed a variety of leave including recreation leave, long service leave and leave without pay. [44] The Respondent says that there is no indication that during the period of 10 November 2021 to 31 March 2022, Ms Champs contracted COVID-19 or was contraindicated with medical support that would have allowed an exemption against being vaccinated. The Respondent says that between 6 December 2021 and 16 December 2021, Ms Champs accessed recreation leave at half pay during which time there was no reason presented by Ms Champs that she could not receive the vaccinations. [45] The Respondent says that between 13 February 2022 and 28 February 2022, Ms Champs utilised recreation leave as her sick leave balance was exhausted and that the normal process for this to occur is that the officer is advised that their sick leave has been exhausted and asked whether they want the leave to be drawn from their recreation leave. The Respondent submits that Ms Champs was aware that she was exhausting all forms of leave and that any period away from work required that she have the ability to access leave. Ms Champs had a responsibility to ensure that she had leave available for the time that she made herself unavailable from the workplace or was required to not be in the workplace due to her failure to be vaccinated. [46] The Respondent says that Ms Champs should not be unjustly enriched for her non- compliance with a legal direction and knowing that the direction was legal, she should have been aware of the need to have access to leave entitlements whilst away from the workplace. [47] With regard to Ms Champs’ reliance on cl 17 of the Guideline, the Respondent says that cl 17 applies to the extent that once an exemption is granted then the officer is not suspended facing discipline and if the exemption is not granted the officer would be subject to potential discipline action. The Respondent says that there is no connection of the clause with any right of suspension on full pay under section 137 of the PS Act and that the clause relates only to whether the officer will be suspended in the face of not receiving an exemption and not becoming vaccination against COVID-19. [48] The Respondent says that Ms Champs has endeavoured to circumvent the requirement to be vaccinated. Consequently, she has utilised and exhausted all leave provisions and has endeavoured to return to work based on her incorrect interpretation of the medical information provided by ATAGI and the QPS advice and policy on delayed vaccination. -- 11 of 17 -- 12 [49] The Respondent says that Ms Champs set about a process that would stop and/or slow the result of her having to receive the vaccinations and in that course, knowingly used all leave provisions. The Respondent says that there has been no exemption application from the Appellant’s medical practitioner advising that there is a medical contraindication, only that Ms Champs had contracted COVID-19 and that the administering of a vaccine should be delayed. Ms Champs’ submissions [50] Ms Champs agrees that the vaccine Direction applies to her. [51] Ms Champs says that her application for exemption on 7 April 2022 was made on the basis that she had contracted COVID-19 and provided a medical certificate and subsequent COVID-19 digital certificates for a three-month contraindication to the vaccine as per the ATAGI guidelines. [52] Ms Champs submits that cl 17 of the Respondent’s Exemption Guidelines applies to her and that having made an application to the VEC, she would be considered exempt from compliance with the Direction until such time as a decision was made to grant or not grant her request. [53] Ms Champs says that in early May, she became aware that a leave without pay application had been lodged on her behalf and without her knowledge for the period 4 April 2022 to 13 May 2022. At a further point in time, similar applications were lodged extending her leave without pay beyond 22 June 2022. [54] Ms Champs says that she received the outcome of her exemption request on 19 May 2022 but that it was not accompanied by written reasons. Ms Champs received reasons for the VEC’s decision to decline her exemption application on 22 June 2022. [55] On 26 May 2022, Ms Champs was informed that she had incurred an overpayment for the period of 4 April 2022 to 13 May 2022. On 13 June 2022, Ms Champs received further advice that she had incurred an overpayment for the period of 14 May 2022 to 3 June 2022. [56] On 1 August 2022, the Respondent wrote to Ms Champs’ union as follows: … Regarding the matter of overpayment to Lee Browitt, As previously explained, the provisions regarding the exemption for Lee’s COVID-19 vaccination have been declined. As a result, Lee received an overpayment of wages for which she was not entitled to receive. As I indicated, I raised the matter for consideration by the Executive Director, Human Resources, for consideration of waiving the overpayment. I have received a decision from the office of the -- 12 of 17 -- 13 Executive Director on 29 July 2022 that the request will not be supported and the outstanding monies are to be reimbursed to the QPS… [57] On Monday 8 August 2022, Ms Champs commenced a grievance by way of email to her Inspector Good Morning Inspector, Thank you for following up on my overpayment matter. I wish to lodge a grievance in relation to an administrative decision under the Individual employee grievances Directive 11/20. On 7 April 2022 I requested an exemption from receiving the COVID 19 vaccine. On 22 June 2022 I received a decision from the Vaccination Exemption Committee refusing my request for exemption and providing reasons for the decision. The decision provides that an email was sent out to AC’s and ED’s on 14 January 2022 advising that the 4-month contraindication after contract COVID-19 based on advice from ATAGI would not apply to people who had not received their first and second doses. I was not provided with this advice. On 17 May 2022 I received an email from Shared Services informing me that I had incurred an overpayment to the tune of $4,182.08, relating to a request for leave without pay for the period 4 April-13 May 2022. At no time have I made an application for leave without pay. On 13 June 2022 I received an email from shared services informing me that I had incurred an overpayment for the period 14 May to 3 June relating to a request for backdated sick leave that was submitted. At no time have I made an application for sick leave for this period, nor was I sick during this period. I was of the understanding that from 7 April 2022 until the date that I received reasons for the decision to accept or refuse my exemption application on 22 June 2022, that I would continue to be paid my normal wage as per the exemption Guideline ‘COVID 19 Vaccination Exemption Process’ which relevantly states: 17. An employee applying for an exemption will be treated as if they are exempt until a decision is made whether the application will be supported or refused. According to this, I should have been treated as exempt from 7 April 2022 to 22 June 2022. The email sent to AC’s and ED’s on 14 January cannot serve as reasons for the decision as I was not made aware of that information until 22 June 2022. Had I known, I would have had an opportunity to avoid the overpayment. I am seeking a decision that, as QPS have not complied with paragraph 17 of the Exemption Guideline an overpayment has not occurred… [58] As outlined above, Ms Champs did not receive a response within the required timelines and so a deemed decision was taken to have occurred on 5 September 2022 per cl 9.1(e) of Directive 11/20. On 19 September 2022, Ms Champs requested an internal review of that deemed decision. No decision was provided and so a deemed decision upholding the decision to pursue the overpayment was taken to have been made on 3 October 2022 and it is this decision Ms Champs appeals and seeks to have set aside. -- 13 of 17 -- 14 [59] Ms Champs says that while senior officers were informed of the QPS policy regarding medical contraindication after contracting COVID-19 in January, she was not made aware of this policy until she received the reasons for decision from the VEC on 22 June 2022 and she did not receive the information set out above at [28]. [60] Ms Champs says that the period of exemption ‘had to have been recognised by the employer, noting the email I received from Inspector Knowles on 12 July 2022, indicating that the ATAGI recommended three-month deferment period had passed and that I was now eligible to receive my COVID19 [sic] vaccination and attached the ATAGI guidelines’.8 [61] Ms Champs submits that in addition to the above, at her discipline investigation on 27 January 2023, she was advised by Leisa Stubbs, Detective Senior Constable, that the period that she was considered to be non-compliant with Direction 14 did not include the two three-month periods during the year of 2022 where she had an ATAGI exemption due to contracting COVID-19. Ms Champs says that she has been unable to obtain a copy of the transcript of that interview, but notes that it is open to the Respondent to rebut this in their submissions in reply.9 [62] Ms Champs says that her experience set out in paragraphs [60] and [61] above demonstrates the confused and inconsistent approach to exemption requests and exemption status taken by QPS. Further, Ms Champs says that if QPS was of the view that COVID-19 digital certificates issued by the Australian Immunisation Register were not acceptable supporting documentation, there were multiple occasions where this information could have been made known to her. [63] Ms Champs says that the leave without pay application was submitted on her behalf without her knowledge or consent and that this is what gave rise to the alleged overpayment. Ms Champs points to cl 18 of the Exemption Guideline which states: As from 5 October 2021, an employee who refuses to follow the Commissioner’s Direction will adversely prejudice the Commissioner’s ability to efficiently and properly discharge her responsibilities and will be immediately suspended from duty with pay. Where an employee is suspended from duty with pay, a Notice to Show Cause process will be commenced in which an employee will be provided with seven (7) days to state why suspension without pay should not be implemented. [64] Ms Champs says that had she been considered exempt, as was the process to be followed under the Exemption Guidelines, she would have been placed on paid suspension pursuant to s 137(1)(a) of the PS Act or another type of paid leave or a paid stand down arrangement until the time period when she was considered exempt expired. In her case, 8 Appellant’s submissions filed 10 February 2023, [18]; Attachment 8. 9 I note that the Respondent did not make any submissions in reply. -- 14 of 17 -- 15 Ms Champs says that this would have been on 22 June 2022 when she received the VEC reasons for decision. [65] Ms Champs says that other employees of QPS were suspended pursuant to s 137(1)(a) and s 137(1)(b) and were afforded access to the natural justice requirements provided for in s 137(9) of the Act. Ms Champs says that she was not granted the same opportunity as her colleagues, nor was she at any time informed she would be stood down. Ms Champs says that had she been afforded the same treatment as her colleagues, she would have been afforded natural justice and provided with notice that her remuneration would cease after the relevant show cause process had been completed. Instead, Ms Champs says that a leave without pay application was submitted on her behalf. [66] Ms Champs says she understands that the leave application was made in accordance with cl 8.2 of the Special Leave Directive 5/17 which relevantly provides, ‘A chief executive may approve unpaid leave for employees for any purpose and for any duration.’ Ms Champs submits that she cannot be authority for unilaterally submitting a leave application on her behalf without her knowledge or consent and that logically, ‘approval’ requires a prior request. [67] Ms Champs says that this is not a case where she was unwell or otherwise unavailable and unable to complete her own leave application within the required 28-day roster period for reconciliation. Ms Champs says that this is: …very simply a case of someone other than myself, without my knowledge, awareness or consent, submitting a leave application on my behalf, ignoring the temporary contraindication and vaccination exemption process underway that should have considered me exempt, and inadvertently causing me a financial penalty. [68] Ms Champs says that employees who were considered exempt did not have to take leave without pay and had options including paid suspension, paid special leave, work-from- home arrangements or alternative duties. [69] In reply to the Respondent’s submissions regarding Ms Champs’ periods of recreation leave, sick leave and leave without pay in December 2021 and early February 2022, she says that she was entitled to those forms of leave and that they were approved by QPS. Further, Ms Champs notes that she underwent surgery on 25 October 2021 and was subsequently provided with an exemption by the VEC until 10 November 2021. Between 15 October 2021 and the date of the surgery, Ms Champs says that she was directed to work from home and that she provided further medical certificates to QPS which to her knowledge were accepted until 31 March 2022. -- 15 of 17 -- 16 Consideration [70] On 19 October 2021, Ms Champs was informed by email that a temporary exemption was granted until 10 November 2021. The clear direction given to her in that email was as follows: …this temporary exemption is subject to you remaining away from the workplace whilst unvaccinated and on leave and being vaccinated in compliance with the Commissioner’s Direction prior to you returning to the workplace, hence, you are reminded that you have until close of business on Wednesday 10 November 2021 to receive your 1st Covid-19 vaccination and provided proof thereof to your OIC… [71] It appears that Ms Champs did not return to work on 10 November 2022 and continued to be away from the workplace on various forms of paid and unpaid leave. There is no evidence that the direction given to her on 19 October 2021 that she be vaccinated before returning to work was ever rescinded. [72] However, there is no evidence before me that Ms Champs was asked about her vaccination status at any of the points that she applied for and was granted leave. [73] When Ms Champs sought to return to work in April 2022, it appears to have been on the basis of her understanding that having recently contracted COVID-19, she would not be required to be vaccinated for a period of time and therefore would receive a further exemption and therefore be paid for the period of the exemption. [74] In my view, it was at the point in time that it was open to the Respondent to consider whether, as Ms Champs had not complied with the Direction of 19 October 2022, she should be suspended or placed on some other form of leave and be told that she was not eligible to apply for an exemption due to her non-compliance. However, this is not what occurred. [75] It appears that the Respondent accepted Ms Champs’ exemption application. Separately, it appears that someone determined that she would remain on leave without pay. It may be that this decision was made on the basis of her non-compliance with the Direction and the likelihood that the exemption request would be refused. But I do not understand that this action was open to the Respondent given the intent of cl 17 of the Guideline appears to be that an employee will be treated as exempt while their exemption request is being considered. [76] The evidence appears to be that Ms Champs wrote to the Respondent on 7 April 2022 seeking an exemption and informing the Respondent that she was ‘cleared to return to work in the days prior to my covid infection so I remain ready and able to work should my exemption be approved’. -- 16 of 17 -- 17 [77] It is clear that Ms Champs did not apply for leave without pay during this time. In fact, she sought to return to work, albeit in the knowledge that she could not return to the workplace in circumstances where she was not vaccinated, hence the application for an exemption. [78] I accept Ms Champs’ submission that she was not in receipt of advice provided to decision-makers that exemption requests would not be considered for those who had not received the first or second doses of the vaccination. I also note that Ms Champs does not appeal the decision not to grant her exemption. [79] While it appears that there had been a range of changes and updates to the Guidelines and advice provided to senior officers regarding the application of the ATAGI (and other) advice, I find that it was reasonable for Ms Champs to believe that in the absence of a suspension either with or without pay, the Guideline applied to her and she would be deemed to be exempt until such time as her exemption application was decided. [80] I understand that the Respondent is of the view that Ms Champs has engineered a situation where she has used leave and attempted to return upon contracting COVID-19 and believing she had a contraindication in an effort to avoid complying with the Direction to be vaccinated. In my view, those are matters which may be taken into account in any disciplinary process arising from non-compliance with the Direction. [81] The matter before me relates to whether it is fair and reasonable for the Respondent to determine that Ms Champs has incurred an ‘overpayment’ for the period in which she had applied for an exemption and was awaiting the outcome of the exemption process. [82] The amount of time it took for the VEC to consider Ms Champs’ exemption application is a matter which was out of her hands. The non-provision of written reasons for the decision was also out of her hands and it was open to her to request the reasons. I find that the date Ms Champs received the outcome of the exemption application was the date that she received the outcome in writing outlining the reasons for the decision per cl 29 of Queensland Police Service Guideline – COVID-19 Vaccination Exemption Process. [83] For the foregoing reasons, the decision not to waive the overpayment for the period from 7 April 2022 when Ms Champs sought to return to work and applied for an exemption until 22 June 2022 when she received the written outcome of her application was not fair and reasonable. The decision is substituted with a decision that the overpayment be waived. Order 1. That pursuant to s 562C(1)(c) of the Industrial Relations Act 2016 (Qld), the deemed decision of 3 October 2022 is substituted with a decision that the overpayment be waived. -- 17 of 17 --