Bailey v State of Queensland (Department of Education) [2024] QIRC 218

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION PARTIES: Bailey v State of Queensland (Department of Education) [2024] QIRC 218 Bailey, Peter (Appellant) v State of Queensland (Department of Education) (Respondent) CASE NO: PSA/2022/893 PROCEEDING: Public Service Appeal – Appeal against a disciplinary action decision DELIVERED ON: 5 September 2024 MEMBER: Pidgeon IC HEARD AT: On the papers ORDERS: 1. Pursuant to s 562A(3) of the IR Act, the appeal will not be heard. CATCHWORDS: PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – PUBLIC SERVICE APPEAL – appeal against disciplinary action decision – where the appellant is employed by the respondent as an Experienced Senior Teacher – where the appellant did not comply with Employment Direction 1/21 – COVID-19 Vaccinations – where the appellant did not comply with Employment Direction 1/22 – where the appeal is dismissed LEGISLATION AND OTHER INSTRUMENTS: Discipline Directive (Directive 05/23) Employment Direction 1/21 – COVID-19 Vaccinations Employment Direction 1/22 – COVID-19 Vaccinations Industrial Relations Act 2016 (Qld) s 562A Public Sector Act 2022 (Qld) ss 134, 324 Public Service Act 2008 (Qld) (repealed) s 188(1), 190 Suspension Directive (Directive 06/23) cl 6.10 -- 1 of 9 -- 2 CASES: Allison v State of Queensland (Department of Education) [2022] QIRC 152 Bakhash v State of Queensland (Department of Education) [2022] QIRC 362 Carr v State of Queensland (Department of Education) [2022] QIRC 188 Currie (Murray) v State of Queensland (Department of Education) [2022] QIRC 269 Davenport v State of Queensland (Department of Education) [2024] QIRC 206 Gorry v State of Queensland (Department of Education) [2022] QIRC 196 Huntington v State of Queensland (Queensland Health) [2022] QIRC 290 Johnston & Ors v Carroll (Commissioner of the Queensland Police Service) & Anor; Witthahn & Ors v Wakefield (Chief Executive of Hospital and Health Services and Director General of Queensland Health); Sutton & Ors v Carroll (Commissioner of the Queensland Police Service) [2024] QSC 2 Mocnik & Ors v State of Queensland (Queensland Health) [2023] QIRC 058 Nicholas v State of Queensland (Department of Education) [2022] QIRC 157 Nuske v Workers' Compensation Regulator [2019] QIRC 023 Prentis v State of Queensland (Department of Education) [2022] QIRC 212 Sankey v State of Queensland (Department of Education) [2024] QIRC 197 Schimke v State of Queensland (Department of Education) [2022] QIRC 136 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) [2023] QIRC 262 Tribe v State of Queensland (Department of Education) [2022] QIRC 203 -- 2 of 9 -- 3 Reasons for Decision Introduction [1] On 22 August 2022, Mr Peter Bailey ('the Appellant') was informed, via correspondence from Ms Anne Crowley, Assistant Director-General, Human Resources, Department of Education ('the decision-maker'), that disciplinary action would be imposed on him following a disciplinary finding that he had contravened, without reasonable excuse, a direction given to him as a public service employee by a responsible person. [2] By way of background, at the time Mr Bailey was subject to Employment Direction 1/21 – COVID-19 Vaccinations, and subsequently, Employment Direction 1/22 – COVID-19 Vaccinations (together 'the COVID-19 Directions'), he was a Mathematics Teacher (Experienced Senior Teacher) at Harristown State High School. It is not in dispute that Mr Bailey chose not to receive any COVID-19 vaccinations. [3] Mr Bailey was informed that the disciplinary action decision made under s 188(1) of the Public Service Act 2008 (Qld) (the 'PS Act 2008') was: • A reduction in remuneration, from ES4-02 to ES4-01, for a period of 18-weeks, at which time you will automatically revert to your previous increment, and a reprimand.1 [4] On 13 September 2022, Mr Bailey filed an appeal notice in the Industrial Registry. Mr Bailey's dominant reason for appeal appears to be his belief that the decision-maker did not give proper consideration to his submissions when making her decision.2 Mr Bailey also states that the outcome of his matter was delivered at approximately the same time as other Department of Education staff who had been issued show cause notices for the same reason.3 Mr Bailey notes that more than 100 staff received the same disciplinary outcome.4 It is on this basis that Mr Bailey argues that he has not received natural justice and fairness in relation to disciplinary outcomes.5 [5] On Thursday 18 April 2024, Vice-President O'Connor mentioned several public sector appeals. One of those was PSA/2022/893; Mr Bailey's appeal against disciplinary action. Following that mention, where Mr Bailey confirmed that he sought to continue his appeal, the Industrial Registry issued an order directing him to file submissions addressing whether the Queensland Industrial Relations Commission ('the Commission') should decide not to hear his appeal pursuant to s 562A(3) of the Industrial Relations Act 2016 (Qld) ('the IR Act'). 1 Respondent's submissions filed in the Industrial Registry on 17 June 2024, Attachment 5, 2. 2 See generally Attachment to Form 89 Appeal Notice Schedule 1: Reasons Discipline was unfair, unjust or unreasonable. 3 Ibid [11]-[13]. 4 Ibid [14]. 5 Ibid [15]-[24]. -- 3 of 9 -- 4 [6] Mr Bailey filed his appeal notice under the PS Act 2008 which was repealed by the Public Sector Act 2022 (Qld) ('the PS Act'). Immediately before the commencement of the PS Act, Mr Bailey's appeal had not been decided. Therefore, the appeal will be heard and decided under ch 3, pt 10 of the PS Act.6 Pursuant to s 134 of the PS Act, the appeal is to be heard and decided under ch 11 of the IR Act which contains s 562A and provides that the Commission may decide not to hear particular public service appeals. [7] Specifically, s 562A(3) of the IR Act states that: (3) The commission may decide it will not hear a public service appeal against a decision if— (a) the appellant has made an application to a court or tribunal relating to the decision, whether or not the application has been fully decided; or (b) the commission reasonably believes, after asking the appellant to establish by oral or written submissions that the appellant has an arguable case for the appeal, that the appeal – (i) is frivolous or vexatious; or (ii) is misconceived or lacks substance; or (iii) should not be heard for another compelling reason. [8] Therefore, the matter I must consider is whether to exercise the discretion to not hear the appeal on the basis that it is frivolous or vexatious; misconceived or lacks substance or that it should not be heard for another compelling reason. Mr Bailey's submissions [9] On 20 May 2024, Mr Bailey sent an email to the Industrial Registry. The body of the email contained his submissions. Therein, Mr Bailey stated, 'I believe my case is such that the QIRC should hear my case, pursuant to s 562A(3) of the Industrial Relations Act 2016'.7 [10] Mr Bailey's submissions proceed to discuss the history of the disciplinary matter and what he says is his reasonable excuse to contravene the COVID-19 Directions. Mr Bailey's submissions also make reference to a decision of the Fair Work Commission regarding lawful directions and s 17 of the Queensland Human Rights Act 2019 (Qld). The email goes on to provide Mr Bailey's opinions regarding the COVID-19 Directions, and his view that the vaccines were experimental and their effectiveness not known. [11] Mr Bailey's submissions address the personal impact of a 6-month suspension without pay and the further loss of remuneration as a result of the disciplinary action. Mr Bailey says that the punishment is unjust because the mandates had already been lifted, unvaccinated teachers were back at their workplaces, and that teachers who had decided not to comply with the COVID-19 Directions had already been subject to suspension without pay. 6 Public Sector Act 2022 (Qld) s 324. 7 Appellant's submissions filed in the Industrial Registry on 20 May 2024. -- 4 of 9 -- 5 [12] Mr Bailey submits that the decision did not comply with the Suspension Directive (Directive 06/23) ('the Suspension Directive') and that the decision-maker was not unbiased or disinterested. Mr Bailey then goes on to extensively quote from the decision of Vice-President O'Connor in Nuske.8 Mr Bailey reiterates the view expressed in his appeal notice that the decision-maker did not properly consider his individual circumstances. [13] Mr Bailey also enquires 'whether the QIRC will be investigating and making a ruling for the recovery of wages for when I was suspended without pay for the 6-month suspension period…'.9 [14] In support of his submissions, Mr Bailey provides a list of websites he consulted, as well as an article from The Guardian titled, 'Novavax vaccine may be approved for Australia within months', and several articles linking the COVID-19 vaccines and death. Respondent's submissions [15] The Respondent filed submissions in the Industrial Registry on 17 June 2024. The Respondent's submissions note Mr Bailey's submissions, which provide that he had a reasonable excuse for noncompliance for the COVID-19 Directions based on his belief that the vaccines would endanger his life and further, that COVID-19 vaccines are not effective. The Respondent also notes Mr Bailey's submission that the disciplinary action taken against him was 'unjust and unreasonable'. [16] In support of the Respondent's submission that Mr Bailey does not have a reasonable excuse for failing to comply with the COVID-19 Directions, the Respondent states that the COVID-19 Directions have repeatedly been found to be lawful and reasonable.10 The Respondent also states that the revocation of the Direction does not alter the lawfulness and reasonableness of the COVID-19 Directions at the time they were made. [17] The Respondent submits that the Commission has also repeatedly confirmed the seriousness of an employee's failure to comply with a reasonable direction from their employer.11 8 Nuske v Workers' Compensation Regulator [2019] QIRC 023 ('Nuske'). 9 Appellant's submissions (n 7). 10 Respondent's submissions filed in the Industrial Registry on 17 June 2024, [13]; See also Schimke v State of Queensland (Department of Education) [2022] QIRC 136; Allison v State of Queensland [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. 11 Huntington v State of Queensland (Queensland Health) [2022] QIRC 290 [54]; Bakhash v State of Queensland (Department of Education) [2022] QIRC 362, [27]. -- 5 of 9 -- 6 [18] The Respondent says that Mr Bailey's concerns are neither novel nor unique. The Respondent describes Mr Bailey's concerns as 'vaccine hesitancy' and notes findings of the Commission that vaccine hesitancy does not amount to a reasonable excuse.12 [19] The Respondent says that while Mr Bailey initially told the Department he was waiting for the Novavax vaccine, he did not provide evidence that he had received the vaccine once it became available in February 2022. Regarding Mr Bailey's submissions about the safety and efficacy of the mRNA vaccines, the Respondent says that the Commission and the Supreme Court of Queensland have accepted the expert evidence of Professor Griffith as to the effectiveness of the vaccines and the absence of reasonably available alternatives to vaccination.13 [20] The Respondent submits that the Commission should exercise its discretion under s 562A(3)(b) of the IR Act on the basis that it is not in the public interest to hear Mr Bailey's appeal as the matters he has raised have previously been heard and determined by the Commission or are otherwise misconceived or lacking in substance. The Respondent cites Tilley,14 a recent decision of the Commission on this matter, which relevantly states: [33] The Commission's resources must be reserved for matters of genuine controversy. They ought not to be made available to unreasonable individuals who, despite overwhelming legal precedent and accepted mainstream medical and scientific opinions, insist on arguing (and re-arguing) the same tedious points in a vain attempt to have their baseless views affirmed, or to delay the inevitable sanctions awaiting them for their non-compliance with a lawful direction.15 [21] With regard to the disciplinary action decision the subject of this appeal, the Respondent says that Mr Bailey's human rights were considered, however the decision-maker determined that any restriction of Mr Bailey's human rights was justified in circumstances where it was in the public interest to ensure employees of the Education Department comply with lawful and reasonable directions. The Respondent submits that the decision-maker determined that compliance outweighed the potential impact on Mr Bailey's human rights. The Respondent notes that the Commission has found vaccine directions are not inconsistent with the Human Rights Act 2019 (Qld).16 [22] The Respondent notes Mr Bailey's submission that the disciplinary action decision was unfair and unreasonable with respect to the lack of consideration provided to each employee's response, the pay-scale reduction and the non-reimbursement of his salary 12 Thorley v State of Queensland (Department of Education) [2022] QIRC 133; [2022] QIRC 136; [2022] QIRC 152. See also Mocnik & Ors v State of Queensland (Queensland Health) [2023] QIRC 058. 13 Respondent's submissions filed in the Industrial Registry on 17 June 2024, [14]. See also [2023] QIRC 058 [44], Johnston & Ors v Carroll (Commissioner of the Queensland Police Service) & Anor; Witthahn & Ors v Wakefield (Chief Executive of Hospital and Health Services and Director General of Queensland Health); Sutton & Ors v Carroll (Commissioner of the Queensland Police Service) [2024] QSC 2, [452]. 14 Tilley v State of Queensland (Queensland Health) [2023] QIRC 262 ('Tilley'). 15 Ibid [33]. 16 Respondent's submissions filed in the Industrial Registry on 17 June 2024, [17]. -- 6 of 9 -- 7 which he says demonstrates non-compliance with the Suspension Directive. With regard to these submissions, the Respondent notes that Mr Bailey is not appealing the decision to suspend him without pay, or any decision not to reimburse his salary for the period of the suspension without pay. In any case, the Respondent notes that by virtue of his non- compliance with the Direction, Mr Bailey made himself unavailable to work and therefore, pursuant to cl 6.10 of the Suspension Directive, he is not entitled to be reimbursed for the suspension period. [23] Regarding the matters Mr Bailey raises about procedural fairness in the making of Ms Crowley's decision, the Respondent refers to the decision of Vice-President O'Connor in Nuske. The Respondent says that in this decision, Vice-President O'Connor found that Ms Crowley provided ample consideration of each employee's submissions.17 [24] The Respondent says that in circumstances where there is no dispute as to the lawful and reasonable nature of the COVID-19 Directions, the imposition of a temporary reduction in pay, as opposed to termination, was 'generous'.18 [25] The Respondent submits that Ms Crowley's decision was procedurally fair as the circumstances of Mr Bailey's appeal are sufficiently analogous to those in Nuske, insofar as Mr Bailey, like the applicant in Nuske was also placed on notice with respect to the Allegation, provided with particulars of the Allegation, provided with an opportunity to respond to the Allegation and was invited to make submissions regarding the proposed penalty. The Respondent notes that Nuske confirmed that the disciplinary decision was fair and reasonable. [26] The Respondent says that, on the basis of the submissions canvassed above at [25] of this decision, that Mr Bailey's appeal is not sufficiently unique to warrant expending further resources of the Commission and that it is therefore not in the public interest that the appeal be heard. Mr Bailey's submissions in reply [27] On 1 July 2024, Mr Bailey filed submissions in reply, in which he reiterates his belief that he had a 'reasonable excuse' not to comply with the COVID-19 Directions. Mr Bailey notes the expert evidence of Professor Griffith, however he says that over time, there has been evidence that the vaccine is ineffective with respect to transmitting the virus. Mr Bailey refers to the attachments to his previous submissions to his Employer and those filed in the Industrial Registry, and says that these constitute 'probative evidence' to support his concerns about the 'possible detrimental effects' on his health if he received the vaccine.19 17 Ibid [20]. 18 Ibid. 19 Appellant's submissions in reply filed in the Industrial Registry on 1 July 2024, [4] and [7]. -- 7 of 9 -- 8 [28] Mr Bailey goes on to provide commentary on the evidence of Ms Crowley at the hearing of Nuske before Vice-President O'Connor. He also critiques Vice-President O'Connor's decision in that matter. Mr Bailey, again, raises his concerns about the suspension without pay decision and seeks reimbursement of wages for the period he was suspended without pay. Consideration [29] At the outset, it is important for Mr Bailey to understand the scope of his appeal. This is an appeal against the Respondent's decision to impose disciplinary action which Mr Bailey received on 22 August 2022. As a result, it is not necessary to consider whether Mr Bailey had a reasonable excuse to contravene the COVID-19 Directions nor is it necessary to consider whether the suspension without pay decision was fair and reasonable. [30] I will also not be considering any matter regarding wage recovery or reimbursement of income for the period Mr Bailey was suspended without pay. However, to assist Mr Bailey to avoid further fruitless applications, I will state here that any such claim made by Mr Bailey will fail for the reasons set out by the Respondent and canvassed above at [22] of this decision. Mr Bailey had not received the vaccine, which rendered him unavailable to work during his suspension. Therefore cl 6.10 of the Suspension Directive has no relevance to Mr Bailey's circumstances.20 [31] The only matter before me is whether the decision of Ms Crowley to impose disciplinary action was fair and reasonable. Mr Bailey has not raised any unique or novel arguments in his submissions which would lead to the inference that he has an arguable case. [32] The Vice-President's decision in Nuske extensively addressed the natural justice matters Mr Bailey has raised in his submissions, including the 'mail merge' nature of the communication of the disciplinary action decision to many recipients. In respect of this, Vice-President O'Connor determined that:21 (a) the individual issues/circumstances raised by the Appellant were appropriately considered and given weight by the decision-maker in making the decision pursuant to Clause 8.6 of the Discipline Directive; and (b) the decision-maker complied with the requirements of s 190 of the PS Act 2008 and specifically with the Discipline Directive and the principles of natural justice. [33] In Nuske, his Honour also found that the disciplinary action decision was proportionate to the seriousness of the Appellant's conduct.22 Vice-President O'Connor also found that the disciplinary decision was fair and reasonable, and that the decision-maker had 20 The relevant directive at the time was Suspension Directive 16/20 which has now been superseded by Directive 06/23 which contains the same provision at clause 10.5. 21 Nuske [95]. 22 Ibid [89] – [90]. -- 8 of 9 -- 9 complied with s 190 of the PS Act 2008, the Discipline Directive (Directive 05/23) (the 'Discipline Directive') and the principles of natural justice. [34] Nuske is a recent and comprehensive authority of the Commission which addresses matters raised by Mr Bailey in his submissions. There is nothing in Mr Bailey's filed material which would lead me to depart from or disagree with Vice-President O'Connor's findings in Nuske. I also note recent occasions where the Commission has considered appeals similar to Mr Bailey's and determined to exercise the discretion afforded by s 562A(3) not to hear the appeal.23 The Commission is a busy jurisdiction and I concur with the sentiment expressed by Dwyer IC in Tilley that the Commission's resources must be reserved for matters of genuine controversy. [35] For the reasons set out above from [29] – [34], I am satisfied that there is a compelling reason not to hear the appeal. Order [36] I make the following order: 1. Pursuant to s 562A(3) of the IR Act, the appeal will not be heard. 23 See Sankey v State of Queensland (Department of Education) [2024] QIRC 197; Davenport v State of Queensland (Department of Education) [2024] QIRC 206. -- 9 of 9 --