Bowcock v State of Queensland (Department of Education) [2024] QIRC 28

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: PARTIES: CASE NO: PROCEEDING: DELIVERED ON: HEARING DATE: MEMBER: HEARD AT: Bowcock v State of Queensland (Department of Education) [2024] QIRC 28 Bowcock, Jon (Appellant) v State of Queensland (Department of Education) (Respondent) PSA/2022/896 Public Service Appeal - Appeal against a suspension without pay decision 9 February 2024 On the papers O'Connor, VP Brisbane ORDER: 1. Pursuant to s 562A(3) of the Industrial Relations Act 2016, I decline to hear the appeal. CATCHWORDS: PUBLIC SERVICE - EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY - PUBLIC SERVICE APPEAL - where appeal against a disciplinary decision - where suspension without remuneration for a period of time - where the appellant was suspended without remuneration for not complying with Employment Direction 1/22 - COVID-19 Vaccinations - where appellant did not apply for an exemption from the application of the direction - where appellant filed appeal out of time - where appellant submits that decision is unfair and unreasonable - where Commission may decide not to hear particular public service appeals -- 1 of 8 -- 2 LEGISLATION: Industrial Relations Act 2016 (Qld), s 562A, s 562B Human Rights Act 2019 (Qld) Information Privacy Act 2009 (Qld) Privacy Act 1988 (Cth) Department of Education Employment Direction 1/22 - COVID-19 Vaccinations CASES: Allison v State of Queensland (Department of Education) [2022] QIRC 152 Bakhash v State of Queensland (Department of Education) [2022] QIRC 362 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 Carr v State of Queensland (Department of Education) [2022] QIRC 188 Currie (Murray) v State of Queensland (Department of Education) [2022] QIRC 269 Elliott v State of Queensland (Queensland Health) [2022] QIRC 332 Erhardt v Goodman Fielder Food Services Limited (1999) 163 QGIG 20 Gorry v State of Queensland (Department of Education) [2022] QIRC 196 Huntington v State of Queensland (Queensland Health) [2022] QIRC 290 Mocnik & Others v State of Queensland (Queensland Health) [2023] QIRC 058 Nicholas v State of Queensland (Department of Education) [2022] QIRC 157 Nuske v State of Queensland (Department of Education) [2023] QIRC 199 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 Rossiter v State of Queensland (Department of Education) [2024] QIRC 025 Schimke v State of Queensland (Department of Education) [2022] QIRC 136 Tadeo v State of Queensland (Department of Education) [2022] QIRC 177 -- 2 of 8 -- 3 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 Reasons for Decision Background [1] Mr Jon Bowcock ('the Appellant') is employed by the State of Queensland ('Department of Education') ('the Department/Respondent') as a teacher at Coombabah State School. [2] The Appellant is appealing a decision to not reimburse his remuneration for a period of time that he was suspended without pay ('Reimbursement Decision') as follows: A reduction in remuneration from B03-04 to B03-03, for a period of 18 weeks and a reprimand. [3] The Appellant was suspended without pay for a period of time while the Department of Education Employment Direction 1/22 - COVID-19 Vaccinations ('the Direction') was in place because he did not provide evidence of having received two doses of a COVID-19 vaccination1. He did not apply for an exemption from the application of the Direction. Appeal filed out of time [4] The Respondent submits the appeal has been filed out of time. In the Respondent's communication of 22 August 2022 the Appellant was informed that any appeal was to be made to the Queensland Industrial Relations Commission ('the Commission') within 21 days of receiving the Reimbursement Decision. The Appellant filed his Appeal Notice on 14 September 2022, two days late.2 [5] The importance of statutory time limits has been referred to and accepted in previous matters and should not easily be dispensed with.3 Legislative timeframes should be complied with and only allowed in exceptional circumstances.4 [6] The Appellant has not provided any response for filing his appeal outside the 21-day time limitation. 1 On 16 December 2021 the Director-General issued Employment Direction 1/21- COVID-19 Vaccinations. On 10 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. The Direction was revoked effective on 30 June 2022. 2 Respondent's submissions filed 30 October 2023, [4]-[5]. 3 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; Erhardt v Goodman Fielder Food Services Limited (1999) 163 QGIG 20. 4 Erhardt v Goodman Fielder Food Services Limited (1999) 163 QGIG 20. -- 3 of 8 -- 4 [7] The Respondent claims the Appellant has limited prospects of success and this is a relevant consideration as to whether he should be granted an extension of time to file his Appeal.5 Mention [8] At a Mention of this appeal held on 4 September 2023 before the Commission as constituted, the Appellant stated as follows: HIS HONOUR: … Now, I just need to find out here, Mr Bowcock, what you'd like to do this morning. APPLICANT BOWCOCK: Well, firstly, I am familiar with the Nuske --- … APPLICANT BOWCOCK: However, I remain unpersuaded that my particular circumstances [indistinct] consider and according to the discipline directive, particularly because of the letter that received in terms of the disciplinary action that was handed down was a computer-generated template, clearly seen at the bottom of the email, so you know, that tells me it was a blanket disciplinary action given to everyone who chose not to get vaccinated. My bigger thing is if I would ask [indistinct] the education department, if they can provide me with evidence consideration of my individual circumstances, which I clearly, clearly put forward in my appeal letter as reasons why I chose not to get vaccinated, you know, I'm happy to not continue, but if I can - receive evidence of her actually acknowledging my personal circumstances, that's - you know, that's a request that I would like. HIS HONOUR: Well, I think that's the letter of the 22nd of August, isn't it? APPLICANT BOWCOCK: Yeah. HIS HONOUR: That's the reasons, I think you'll find. APPLICANT BOWCOCK: There was no - in that letter, nothing to say or referring to any of my personal circumstances. HIS HONOUR: So you weren't vaccinated? APPLICANT BOWCOCK: Nah. HIS HONOUR: Right, and you didn't follow the directive regarding vaccinations? APPLICANT BOWCOCK: Nah. APPLICANT BOWCOCK: - - - in terms of whether to proceed. HIS HONOUR: Yes. 5 Respondent's submissions filed 30 October 2023, [7]. -- 4 of 8 -- 5 APPLICANT BOWCOCK: Now, I requested on multiple times information so I could make an informed decision from the department. I asked for multiple risk assessments, information as to, you know, why to make an informed decision. Now, you said that. I quote you said that to a person just before. HIS HONOUR: Yes. APPLICANT BOWCOCK: How could I make an informed decision on a medical procedure that was in a trial? How could I make an informed decision?6 APPLICANT BOWCOCK: Given there's no - there is no data, there was no data at the time on health risks, long-term data on safety. So like you said, I'm happy to have - I know that you're providing us this information in order to make an informed decision but we were not afforded that when we were, one, suspended without pay for six months and then second, penalised for a second time. HIS HONOUR: Yes, Mr Bowcock, these things were dealt with in a lot of decisions, Nuske is one of them but you know - - - APPLICANT BOWCOCK: Look, I - - - HIS HONOUR: - - - I can't really - - - APPLICANT BOWCOCK: I'm not persuaded the fact that Mrs Crowley's followed the correct procedures in terms of actually acknowledging and considering individual circumstances of all parties that --- HIS HONOUR: Yes. Well - - - APPLICANT BOWCOCK: - - - actually appealed. HIS HONOUR: - - - that decision's there and it stands, so I can't really make any comment about that. Yes, Mr Grant? Did you want to say something? MR GRANT: No, your Honour, I just - Mocnik was another one. HIS HONOUR: Yes. MR GRANT: Yeah. HIS HONOUR: Yes, so there's another case called Mocnik but there's a whole range of cases that have dealt with these issues that you've raised, all right?7 [9] At the conclusion of the Mention the Appellant sought a week to consider his appeal and the issues raised by the Commission and the Respondent. On Monday 11 September 2023 the Appellant advised he wished to continue with his appeal. Whether the Commission may decide not to hear particular public service appeals under section 562A of the IR Act 6 TR1-28, L3-TR1-29, 25. 7 TR1-30, L26-TR1-31, L11. -- 5 of 8 -- 6 [10] On 9 October 2023 the Commission issued Directions for the Respondent to file submissions addressing why the Commission should decide not to hear the appeal pursuant to s 562A of the Industrial Relations Act 2016 ('the IR Act'). The Appellant was required to file submissions in response by 20 November 2023. The Appellant failed to do so. [11] Section 562A relevantly provides: 562A Commission may decide not to hear particular public service appeals (1) … (2) … (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. Respondent's submissions [12] In his appeal notice the Appellant claims the Direction was not a lawful and reasonable direction, that it was not reasonable based on the risk posed by COVID-19 and that the Direction contravened existing legislative protections including the Privacy Act 1988 (Cth) and the Human Rights Act 2019 (Qld). The Respondent states these particular matters have been considered and determined in numerous matters before the Commission and in particular Mocnik & Others v State of Queensland (Queensland Health).8 The issues raised by the Appellant have not been found in favour of employees or former employees.9 [13] The Respondent submits that the Commission should exercise its discretion under s 562A(3)(b) of the IR Act as it would not be in the public interest because the matters have been heard and determined or are otherwise misconceived or lacking in substance.10 8 [2023] QIRC 058, (Mocnik). 9 Respondent's submissions filed 30 October 2023, [16], [17]. 10 Ibid, [18]. -- 6 of 8 -- 7 [14] The Appellant has failed to make any unique argument in support of his Appeal despite 'overwhelming legal precedent and accepted mainstream medical and scientific opinions' for his non-compliance with a lawful direction.11 Whether decision is fair and reasonable [15] The Respondent submits the Direction was found to be both lawful and reasonable in other matters before the Commission.12 The revocation of the Direction by the Respondent does not alter that finding.13 [16] Failure to comply with a lawful and reasonable direction is a serious act of insubordination and failing any compelling mitigating factors, would justify termination of employment.14 In this matter the Respondent imposed a lesser sanction and enabled the Appellant to continue his employment.15 [17] The Appellant was only required to provide evidence of vaccination status, and this was not inconsistent with the Privacy Act 1988 (Cth) or the Information Privacy Act 2009 (Qld). In addition, the Appellant's human rights were considered as the Respondent had a public interest in ensuring employees complied with lawful and reasonable directions. As determined in Mocnik and others the Commission has repeatedly found vaccination directives are not inconsistent with the Human Rights Act 2019.16 [18] The Reimbursement Decision issued to the Appellant was procedurally fair. Similar to the decision in Nuske v State of Queensland (Department of Education),17 the Appellant was provided with the Allegation including particulars and provided with an opportunity to respond and make submissions in respect of the proposed penalty.18 Consideration 11 Tilley v State of Queensland (Queensland Health) [2023] QIRC 262, [33]. 12 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. 13 Respondent's submissions filed 30 October 2023, [21]. 14 Bakhash v State of Queensland (Department of Education) [2022] QIRC 362, [27]. 15 Huntington v State of Queensland (Queensland Health) [2022] QIRC 290, [46]. 16 [2023] QIRC 058; Bakhash v State of Queensland (Department of Education) [2022] QIRC 362; Elliott v State of Queensland (Queensland Health) [2022] QIRC 332. 17 [2023] QIRC 199. 18 Respondent's submissions filed l30 October 2023, [25]. -- 7 of 8 -- 8 [19] Section 562B of the IR Act provides the appeal must be decided by the Commission reviewing the decision appealed against and the purpose of the appeal is to decide whether the decision appealed against was fair and reasonable.19 [20] The Appellant bears the onus of establishing that the decision was not fair or reasonable. He has failed to do so. [21] The Appellant failed to make any submissions in response to the Directions Order issued on 9 October 2023. Unfortunately, the only material in support of the appeal comes in the form of a 'generic' Appeal Notice which has been used by other litigants in this jurisdiction. [22] The assertions made by the Appellant in his notice of appeal have been agitated in various proceedings before this Commission and all such arguments have been rejected. The Appellant's submissions have no merit. [23] For the reasons expressed in Rossiter v State of Queensland (Department of Education)20 and in a multitude of other cases in the Commission, I consider the decision to not reimburse the Appellant for the period of his suspension was fair and reasonable. [24] On any view of the material before the Commission the appeal advanced by the Appellant is misconceived or lacking in substance and it would not be in the public interest for this matter to progress to a hearing. [25] Appropriate grounds have been formed to exercise the discretion to decline to hear the appeal. [26] Notwithstanding my expressed view that the appeal is misconceived or lacking in substance, the fact that the appeal was filed out of time and the Appellant failed to provide any submissions in accordance with the directions order, support the exercise of my discretion under s 562A(3) of the IR Act to not hear the appeal. [27] I make the following order: Order: 1. Pursuant to s 562A(3) of the Industrial Relations Act 2106, I decline to hear the appeal 19 Page v John Thompson and Lesley Dwyer, As Chief Executive Officer, West Moreton Hospital and Health Service [2014] QSC 252, [60] to [61] (Byrne SJA) as to the former, equivalent provisions in s 201 of the Public Service Act 2008. 20 [2024] QIRC 025. -- 8 of 8 --