Argent v State of Queensland (Department of Education) [2022] QIRC 474

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Argent v State of Queensland (Department of Education) [2022] QIRC 474 PARTIES: Argent, Carolyn Maree (Appellant) v State of Queensland (Department of Education) (Respondent) CASE NO.: PSA/2022/920 PROCEEDING: Public Service Appeal - Fair treatment decision DELIVERED ON: 7 December 2022 HEARING DATE: MEMBER: On the papers Pidgeon IC DATES OF WRITTEN SUBMISSIONS: Respondent's submissions 19 October 2022 Appellant's submissions in reply 2 November 2022 Appellant's further submissions 16 November 2022 Respondent's submissions in reply 24 November 2022 ORDER: Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016, the decision appealed against is confirmed. CATCHWORDS: PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – PUBLIC SERVICE APPEAL – Appellant employed by the Department as a Senior Teacher – by cl 5 of the Department of Education – Employment Direction 1/21 - COVID-19 Vaccinations, the Appellant was required to receive a first dose of a COVID-19 vaccine by 17 December 2021 and to provide evidence of such vaccination – Appellant failed to comply with the Direction – Appellant suspended without remuneration – Appellant's suspension without -- 1 of 13 -- 2 remuneration subsequently ceased – decision that Appellant would not be repaid remuneration for period of suspension without remuneration – Appellant appealed against that decision – whether decision was fair and reasonable – decision fair and reasonable – decision confirmed LEGISLATION AND OTHER INSTRUMENTS: COVID-19 Vaccination Requirements for Workers in a high-risk setting Direction COVID-19 Vaccination Requirements for Workers in a high-risk setting Direction (No.2) Department of Education - Employment Direction 1/21 - COVID-19 Vaccinations cls 1, 2, 3, 4, 5, 8 Employment Direction 1/22 - COVID-19 Vaccinations Industrial Relations Act 2016 ss 562B, 562C Public Service Act 2008 ss 137, 194 Public Service Suspension Directive 16/20 cl 6 CASES: Graf and Ors v State of Queensland (Department of Education) [2022] QIRC 451 Winter v State of Queensland (Department of Education) [2022] QIRC 350 Reasons for Decision Introduction [1] Ms Carolyn Argent (the Appellant) is a Senior Teacher employed by the State of Queensland, Department of Education (the Respondent) at Koumala Primary School. [2] This fair treatment appeal relates to the Respondent's decision not to backpay the Appellant for the period during which she was suspended without normal remuneration for failing to follow a lawful direction to be vaccinated against COVID-19. -- 2 of 13 -- 3 The Direction and the Suspension Direction 1/21 [3] On 11 December 2021, the Chief Health Officer of Queensland issued the COVID-19 Vaccination Requirements for Workers in a high-risk setting Direction (the First CHO Direction). Shortly thereafter on 16 December 2021, the Director-General of the Department issued the Department of Education - Employment Direction 1/21 - COVID- 19 Vaccinations (Direction 1/21). [4] Direction 1/21 relevantly provides: 1. Audience Department Wide (excluding Office of Industrial Relations) 2. Compliance Compliance with this direction is mandatory. 3. Purpose In recognition of the high risk of transmission of the COVID-19 virus, for the protection of vulnerable persons and that a sudden reduction in available workforce would significantly affect the continuity of education services (among others) on Saturday 11 December 2021 the COVID-19 Vaccination Requirements for Workers in a high-risk setting Direction | Queensland Health (CHO Direction) was published re vaccination of workers in high-risk settings including: • schools and outdoor education facilities; • other education facilities, including TAFE, that are co-located with a school; • outside school hours care and vacation care; and • kindergartens, registered and licensed early childhood settings and family day-care providers. The purpose of this direction is to outline the COVID-19 vaccination requirements for existing and prospective Department of Education workers (excluding OIR) who attend a high-risk setting as part of their role or the services they provide. 1 4. Application The CHO Direction captures many Department of Education workers (excluding OIR) as the CHO direction applies to all workers in a high-risk setting and prevents entry to a high-risk setting unless the worker complies with the COVID-19 vaccination requirements with some very limited exceptions. 1 Emphasis added. -- 3 of 13 -- 4 This Direction applies to all Department of Education workers who attend a high-risk setting as part of their role or the services they provide. This Direction also applies to identified staff within regional and central offices who are required to be present in a school as part of their work duties, i.e. where attendance at a school is necessary to fulfil the requirements of their job. [5] The definition of 'high-risk setting' in Direction 1/21 and the First CHO Direction includes educational settings such as schools. Unvaccinated workers without a qualifying exemption were prevented from lawfully entering high-risk settings except in limited circumstances. [6] The First CHO Direction was replaced by the COVID-19 Vaccination Requirements for Workers in a high-risk setting Direction (No.2) (the Second CHO Direction) effective from 4 February 2022. It provided that workers were not permitted to enter, remain in, work in, or provide services in a high-risk setting unless they were fully vaccinated. It defines a 'high-risk setting' as early childhood, primary and secondary educational settings, including schools. [7] Subsequently, the Director-General of the Department issued Employment Direction 1/22 - COVID-19 Vaccinations, effective 10 March 2022, which is not materially different to Direction 1/21. [8] Ms Argent was a person covered by Direction 1/21. Therefore, in accordance with cl 5 of Direction 1/21, Ms Argent was required to receive a first dose of a COVID-19 vaccine by 17 December 2021 and to provide evidence of such vaccination. [9] Ms Argent did not comply with Direction 1/21. The suspension decisions [10] By letter dated 10 January 2022, Ms Genevieve Gillies-Day, Executive Director, People and Corporate Services, Department of Education, wrote to Ms Argent to advise that she was suspended on normal remuneration pursuant to the Public Service Suspension Directive 16/20 (Directive 16/20) for her failure to comply with Direction 1/21. In that letter, the Appellant was required to show cause by 17 January 2022 as to why she should not be suspended without remuneration. [11] Through her representative, Teachers' Professional Association of Queensland (TPAQ), Ms Argent responded to the show cause letter on 16 January 2022. [12] The Department subsequently decided to suspend Ms Argent without remuneration pursuant to s 137 of the Public Service Act 2008 (the PS Act). This decision was communicated to the Appellant on 27 January 2022 by correspondence from Ms Rynell Hastie-Burroughs, Executive Director, Business Partnering and Engagement, -- 4 of 13 -- 5 Department of Education. In the process of filing its submissions for this appeal, the Respondent discovered that due to an administrative error, Ms Hastie-Burroughs did not consider the Appellant's response to the show cause letter. The Appellant's approved medical exemption and return to work [13] After being suspended without normal remuneration, the Appellant obtained an approved medical exemption pursuant to cl 8 of Directive 1/21 for the period of 8 May 2022 to 19 August 2022. [14] Consequently, on 23 May 2022, Mr David Miller, Executive Director, Early Learning and Development, Department of Education wrote to the Appellant to advise that the Department had decided to change her suspension without remuneration status to suspension with remuneration in recognition of her approved medical exemption. Mr Miller said, 'Accordingly, I advise that your suspension without pay will end immediately from the date of this letter and you will receive backpay from the date you applied for your exemption'. [15] Also on 23 May 2022, Mr Miller wrote a separate letter to the Appellant and advised that the suspension decision had been cancelled due to her approved medical exemption. The Department understood that the Appellant had completed a risk assessment with her relevant supervisor and agreed on a nominated date for her return to the workplace. [16] On 24 June 2022, Mr Miller advised the Appellant that she was no longer required to comply with the conditions of the risk assessment because the CHO Direction would be revoked on 30 June 2022. [17] Subsequently, Direction 1/21 and the CHO Direction were both revoked on 30 June 2022. The suspension reimbursement decision [18] On 24 June 2022, the Appellant wrote to the Department's COVID Compliance Team to enquire as to whether she would be repaid for the period during which she was suspended without pay. [19] On 7 September 2022, the Department's COVID Compliance Team responded to the Appellant's enquiry and said: Hi Carolyn Thank you for your enquiry. The correspondence you received on 24 June 2022 notifying you that your suspension would cease clarified that you would not be repaid for the period you were suspended without pay. An extract of that correspondence is provided below: -- 5 of 13 -- 6 "If you have been suspended without remuneration (pay) at any stage throughout this process, I confirm that you will not be repaid for the period you were suspended without pay. This is in accordance with Clause 6.10 of the Public Service Commission's Suspension Directive 16/20, on the basis that you were not available to work during the period of suspension, as you were not compliant with the Direction, and for the reasons outlined in the letter advising you of the decision to suspend you without pay." If you believe that the decision is unfair and unreasonable, you may lodge an appeal under the appeal provisions of the Public Service Act 2008. The Queensland Industrial Relation Commission Industrial Registry will be able to provide further information about public service appeal procedures… [20] In its submissions filed on 19 October 2022, the Respondent acknowledges that the above email from the COVID Compliance Team 'refers to an excerpt from the Suspension Reimbursement Decision that the Appellant did not receive, as the email suggests, in the correspondence dated 24 June 2022'.2 The Appeal Notice [21] Ms Argent filed her appeal on 28 September 2022 indicating that she was appealing a suspension without pay decision. However, in the schedule attached to her appeal, Ms Argent says 'I am appealing the decision to not back pay me after unpaid suspension for these reasons…'. [22] In the Respondent's submissions filed on 19 October 2022, it notes the following ambiguity in Ms Argent's appeal notice: The Respondent notes that the Appeal Notice attracts some uncertainty about what decision is the proper subject of the Appeal. In the Appeal Notice, the Appellant selected the option for an appeal of "a decision about suspension without pay". However, the Appellant has attached an email from the COVID Compliance Team dated 7 September 2022, and refers to this advice as the subject of her appeal. Additionally, the Appellant has attached to the Appeal Notice the Suspension Without Remuneration Decision as well as the Cancellation of Risk Assessment Decision.3 [23] The Respondent therefore made a jurisdictional objection and submitted that the suspension reimbursement decision could not be appealed under s 194(1) of the PS Act as a suspension without pay decision. [24] In her reply submissions of 2 November 2022, the Appellant responded to the jurisdictional objection by submitting the following: I observe the jurisdictional issues raised by the respondent in their submissions. I now understand am aware that the decision being appealed against was not a suspension without pay decision and 2 Respondent's submissions filed 19 October 2022 [32]. 3 Respondent's submissions filed 19 October 2022 [10]. -- 6 of 13 -- 7 this in fact occurred on 27 January 2022, and the window for appeal for that decision has long since passed. However, I am trying to appeal the outcome of the decision not to provide me with backpay for the suspension without pay period, which was provided with this appeal notice. With this in mind, I would ask the Commission to please consider my matter as a fair treatment decision under s 194(1)(eb).4 [25] In her submissions, the Appellant notes that the Respondent 'incorrectly stated that I had not responded to my Suspension without Remuneration Letter, even though the Respondent previously acknowledged my response'.5 [26] By email dated 9 November 2022, the Respondent wrote to the Industrial Registry to advise the following: I can now confirm that due to an administrative error Ms Argent’s response dated 16 January 2022 was not considered by Ms Rynell Hastie-Burroughs, Executive Director when she made the decision to suspend Ms Argent without remuneration. This administrative error is the reason why the Department’s submissions do not reflect Ms Argent as having provided a response to the suspension without remuneration show cause. … Mention to clarify the decision subject of the appeal [27] I subsequently listed the matter for mention on 11 November 2022. [28] At the mention, the Respondent said that due to an administrative error, the Department had not reviewed the Appellant's response to the show cause letter as it had anticipated and it acknowledged that this was a 'procedural standards issue'.6 [29] The Respondent submitted that nevertheless, the Appellant's response to the show cause letter prepared by her representatives was of a 'templated' nature which has been received by the Department in similar matters. Further, the content of the Appellant's response would not have changed the Department's decision to suspend the Appellant without pay.7 [30] The Appellant responded that while she accepts that she provided a templated response, she had contacted the COVID Compliance Team in an attempt to request an extension to the show cause notice to provide a personalised response and did not hear back. 8 Further, 4 Appellant's submissions in reply filed 2 November 2022 [2]-[3]. 5 Ibid [18]. 6 T1-2, ll 23-31. 7 T1-2, ll 35-41. 8 T1-3,LL 7-14. -- 7 of 13 -- 8 she made a natural justice argument that her matter should have been considered on an individual basis.9 [31] I asked the Appellant to clarify what decision she intended to appeal and whether it was the suspension without pay decision. The Appellant said: APPELLANT: It's not the actual decision itself, no. It is the decision not to back-pay me. And when I found out that was not occurring, I put the paperwork in as advised by the COVID compliance team in their email to me ---10 [32] Further, I tested the Appellant's understanding that she was out of time to appeal the suspension without pay decision and asked whether it was her view that had the Department read her show cause response, a different outcome may have been reached. The Appellant said: APPELLANT: I agree that the suspension without pay would have gone that way no matter what I wrote or no matter what I submitted for the show cause notice. I don't believe that --- COMMISSIONER: All right. So --- APPELLANT: --- any different decision would have been made.11 [33] The Appellant confirmed her intention that her appeal would instead continue as a fair treatment appeal. The following exchange is taken from the transcript: COMMISSIONER: Yes. So it just seems to me then, given that the decision under appeal isn't the suspension without pay decision, and there seems to be an agreement between the parties - and I certainly would agree as well, just based on the other cases - that there probably wouldn't be a different outcome for you, even if the Department had read your response - sorry - the [TPAQ] templated response. I'm minded that the - the public service appeal against the decision not to back- pay your pay for the period of time you were suspended without pay, I think that appeal can probably continue on foot, and that the submissions should be specifically about whether or not you should be back-paid, not whether or not --- APPELLANT: Sure. COMMISSIONER: --- the suspension itself in the first place should have happened, does that make sense? APPELLANT: Yes. Sure. And, originally, I did submit as a suspension without pay decision, as I was under the impression that me not being back paid fell under that umbrella of that decision. So --- COMMISSIONER: Yes. 9 T1-3, ll 16-24. 10 T1-3, ll 35-37. 11 T1-4, ll 31-37. -- 8 of 13 -- 9 APPELLANT: And then in my latest submission, I actually changed it, I suppose - not changed it, but requested and - you know, acknowledged that the Department would raise issues about that actual decision being [appealed]. COMMISSIONER: Yes. APPELLANT: And then I considered that maybe it would be a fair treatment decision instead of -- - COMMISSIONER: Yes. APPELLANT: --- a suspension without --- COMMISSIONER: And then in your --- APPELLANT: --- pay decision.12 [34] I then issued a Further Directions Order on 14 November 2022 requesting further submissions from the parties with the understanding that Ms Argent had filed a fair treatment appeal against the decision not to reimburse her for the period of time she was suspended without pay. Is the Appellant entitled to appeal? [35] Section 194 of the PS Act lists various categories of decisions against which an appeal may be made. Section 194(eb) provides that an appeal may be made against 'a decision a public service employee believes is unfair and unreasonable (a fair treatment decision)'. [36] The appeal notice was filed with the Industrial Registry on 28 September 2022, within the required 21 days of the suspension reimbursement decision dated 7 September 2022. I am satisfied that the Appellant may appeal the decision. Appeal Principles [37] 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.' [38] 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. [39] 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 decision conveyed to Ms Argent on 7 September 2022 was fair and 12 T1-5, ll 1-37. -- 9 of 13 -- 10 reasonable. [40] 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. [41] For the reasons that follow, I find that the decision was fair and reasonable. Ms Argent's submissions [42] Ms Argent addresses her reasons for appeal in a schedule to her appeal notice filed on 28 September 2021. With regard to cl 6.10 of the Suspension Directive (see below), Ms Argent says that she: … expressed multiple times my willingness and ability to return to work. I did not commence other employment to ensure I was available when needed. The suspension was the only thing stopping me from returning as I could have completed my role remotely without entering school grounds. [43] Ms Argent then goes on to make submissions regarding, in summary: • the unfairness of the decision to suspend her; • the reasons she did not answer the Education Queensland survey; • her requests for more information about the vaccine, including a request for a risk assessment and information about the legal status of vaccines; • not being consulted or provided with the information requested. [44] Ms Argent filed further written submissions on 2 November 2022. In these submissions, Ms Argent says that 'the assumption that I am not vaccinated is unfair'. Ms Argent goes on to say that she did not inform the Department of her vaccination status as she did not agree with the privacy statement. Ms Argent says that by not disclosing her vaccination status, she has only made herself unavailable to attend a school setting, not unavailable to work. [45] Ms Argent then goes on to make submissions regarding the unfairness of the original show cause process regarding the initial decision to suspend her without remuneration. Ms Argent maintains that her individual circumstances have not been taken into account. -- 10 of 13 -- 11 The Department's submissions [46] The Department confirms that by letter dated 10 January 2022, Ms Argent was informed that she was not lawfully able to attend the workplace due to her failure to provide evidence that she had been vaccinated against COVID-19. [47] As is outlined above, in a letter dated 27 January 2022, Ms Argent was informed of a decision to suspend her without pay. On 23 May 2022, Ms Argent was informed that her suspension without remuneration would be changed to suspension with remuneration in recognition of her approved medical exemption. On 24 June 2022, Ms Argent was informed that the CHO Direction would be revoked effective from 1:00 am on 30 June 2022. [48] The Department says that Ms Argent was suspended on the basis that she did not comply with Direction 1/21 and was therefore not able to work. [49] The Department states that cl 6.6 of the Suspension Directive must be read subject to cl 6.10 of the Directive. [50] The Department says that despite Ms Argent's willingness to work and preparedness to be available for work, she was unable to attend her workplace which was a 'high-risk setting' while she remained unvaccinated against COVID-19. The Department says that in choosing not to be vaccinated, Ms Argent made herself unavailable to work, cl 6.10 applies and Ms Argent is therefore not entitled to be reimbursed for the period that she was suspended without remuneration. Was the decision not to backpay the Appellant fair and reasonable? [51] The decision subject of this appeal is the decision of the Respondent to not reimburse Ms Argent for remuneration she did not receive during the period of her suspension without pay. [52] I understand that the Department found during the process of considering submissions for this appeal, that at the time the suspension without pay decision was made, Ms Argent's show cause response was not considered by the decision-maker. Based on the information available to me, that show cause response consisted of the 'templated' responses provided to many teachers by TPAQ. At the time of the show cause process, Ms Argent had refused to provide the Department with information about her vaccination status and did not have an exemption from the Directive. [53] If Ms Argent was dissatisfied with the decision to suspend her without remuneration, the time to appeal was within 21 days of receipt of that decision. At the mention of the matter outlined above, Ms Argent confirmed that the decision she seeks to appeal in this current -- 11 of 13 -- 12 appeal before me, is the decision not to pay her for the time she was suspended without pay. [54] On Ms Argent's own submissions, she decided not to inform the Department of her vaccination status. As a result of this decision, Ms Argent was unable to attend her workplace, which was a 'high-risk setting'. [55] Clause 6 of the Suspension Directive entitled 'Suspension without remuneration' relevantly provides: 6.6 An employee must be reimbursed for remuneration the employee does not receive during the employee’s suspension if a decision on discipline has been made that does not result in termination of their employment. … 6.10 If the employee was not available to work during the period of suspension for reasons other than being suspended (for example, due to being detained in a corrective services facility), then the amount repaid to the employee must be less the total number of days that the employee was not available to work during the period of suspension. [56] In deciding this appeal, I have considered a similar case decided by Merrell DP in Graf and Ors v State of Queensland (Department of Education).13 In that case, His Honour said: However, whilst Ms Graf and Ms Holdsworth remained unvaccinated, they could not enter the schools at which they are respectively employed. This is because they were not available to work because they were in breach of the CHO Direction and/or the Second CHO Directive and therefore they could not lawfully enter a high-risk setting as an employee. In those circumstances, cl 6.10 of the Suspension Directive applies and that even if a disciplinary decision is made, in respect to both of them, where their employment is not terminated, they would, nevertheless, not be entitled remuneration during the period of their suspension without pay because they were not available to work during the period of suspension for reasons other than being suspended. I came to the same conclusion, about the same facts, in Winter v State of Queensland (Department of Education). [57] I understand that Ms Argent says it is unfair to assume she is not vaccinated and that she did not provide her vaccine status to the Department because she believed she was entitled to keep this information private under the Privacy Act 1998 (Cth). However, in the absence of advice that she was vaccinated, the Department could not allow her to enter her workplace. This is because the CHO Direction precluded the Department from allowing people to attend high-risk settings unless they were vaccinated. The employee survey was the mechanism for the Respondent to gather that information and Ms Argent did not reply to the request for information made through the survey. If Ms Argent was indeed vaccinated but was concerned about the method being used to gather the information and its affect on her privacy, it was open for her to seek an avenue to provide 13 Graf and Ors v State of Queensland (Department of Education) [2022] QIRC 451, [83] citing Winter v State of Queensland (Department of Education) [2022] QIRC 350. -- 12 of 13 -- 13 this information. In the absence of advice that she was vaccinated, she could not attend the workplace. [58] I find myself arriving at the same conclusion Merrell DP reached in Graf and in Winter. Even if she had not been suspended from duty and was willing and available to work, Ms Argent could not have attended her workplace due to her decision not to inform the Department of her vaccination status. Clause 6.10 applies and Ms Argent is not eligible to be reimbursed. Conclusion [59] For the reasons I have given, I confirm the decision not to reimburse Ms Argent for the period she was suspended without remuneration. Order [60] I make the following order: Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016, the decision appealed against is confirmed. -- 13 of 13 --