Brailey v State of Queensland (Department of Education) [2022] QIRC 401

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Brailey v State of Queensland (Department of Education) [2022] QIRC 401 PARTIES: Brailey, Marika (Appellant) v State of Queensland (Department of Education) (Respondent) CASE NO.: PSA/2022/638 PROCEEDING: Public Service Appeal - Fair treatment decision DELIVERED ON: 19 October 2022 HEARING DATE: MEMBER: On the papers McLennan IC 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 as a Japanese Language Teacher through the Department of Education - cl 5 of the Department of Education - Employment Direction 1/21 - COVID-19 Vaccinations mandated COVID- 19 vaccination within prescribed timeframe - Appellant failed to comply with the Direction - Appellant suspended without remuneration - Appellant subsequently obtained exemption on the basis of medical contraindication - Appellant's suspension without remuneration 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 & OTHER INSTRUMENTS: Industrial Relations Act 2016 (Qld), s 451, s 562B, s 562C, s 564 -- 1 of 12 -- 2 Public Service Act 2008 (Qld), s 137, s 194 COVID-19 Vaccination Requirements for Workers in a high-risk setting Direction, cl 9, sch 1, sch 2 COVID-19 Vaccination Requirements for Workers in a high-risk setting Direction (No.2), cl 10, sch 1, sch 2 Department of Education - Employment Direction 1/21 - COVID-19 Vaccinations, cl 1, cl 2, cl 3, cl 4, cl 5 Directive 16/20: Suspension directive, cl 6 CASES: Gilmour v Waddell & Ors [2019] QSC 170 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203 Winter v State of Queensland (Department of Education) [2022] QIRC 350 Reasons for Decision Introduction [1] Mrs Marika Brailey is employed by the Department of Education, State of Queensland (the Department; the Respondent) as a Japanese Language Teacher at Charters Towers – School of Distance Education. [2] On 16 December 2021, the Director-General of the Department issued the Department of Education Employment Direction 1/21 - COVID-19 Vaccinations (the Direction). [3] Relevantly, cl 5 of the Direction mandated: All Department of Education workers whose role (employed or otherwise) requires any attendance in a high-risk setting must: a. have received the first dose of a COVID-19 vaccine by 17 December 2021; b. as soon as reasonably practicable after the first dose of the COVID-19 vaccine and in any event no later than 5pm AEST on 7 January 2022, show evidence of having received the first dose in line with section 6 below; c. have received the prescribed number of doses of a COVID-19 vaccine by 11:59pm AEST on 23 January 2022; and -- 2 of 12 -- 3 d. as soon as reasonably practicable and in any event before attending a high-risk setting on 24 January 2022, show evidence of having received the prescribed number of Covid-19 vaccines in line with section 6 below. [4] Clause 3 of the Direction prescribed that "high-risk settings" include schools and outdoor education facilities. [5] The Appellant failed to comply with the Direction and did not initially apply for an exemption. [6] On 10 January 2022, the Appellant was suspended from duty with remuneration and asked to show cause as to why she should not be suspended without remuneration. [7] On 17 January 2022, Red Union Support responded to the proposed suspension without remuneration on behalf of the Appellant. [8] On 21 January 2022, the Department advised the Appellant of the decision to suspend her without remuneration. [9] Due to an administrative oversight, the Appellant's response had not been provided to the author of the 21 January 2022 correspondence. [10] On 25 January 2022, the Department advised the Appellant that the correspondence dated 21 January 2022 incorrectly referred to the Appellant as not having provided a response. Accordingly, the Appellant was advised to disregard the correspondence dated 21 January 2022. However, Mr Tim Gall, Executive Director, HR Shared Services then advised that, having regard to material before him – including the Appellant's show cause response – he had determined to suspend her from duty without remuneration effective immediately upon her receipt of that letter until 30 June 2022, or until otherwise advised. [11] The Appellant did not appeal the decision to suspend her from duty without remuneration. [12] The Appellant's suspension from duty without remuneration was extended on several occasions. [13] On 10 June 2022, the Appellant provided evidence of a medical contraindication to the Department. That evidence was accepted and the Appellant was granted an exemption on 14 June 2022. [14] On 24 June 2022, Mr David Miller, Executive Director of the Department, advised the Appellant that: • the COVID-19 Vaccination Requirements for Workers in a high risk-setting Direction (No. 2) had been revoked; • her suspension from duty will cease at 1:00am on 30 June 2022; and • she will not be repaid for the period she was suspended without pay in accordance with cl 6.10 of Directive 16/20 Suspension (Directive 16/20) on the basis that she -- 3 of 12 -- 4 was not available to work during the period of suspension, as she was not compliant with the Direction, and for the reasons outlined in the letter advising her of the decision to suspend her without remuneration. [15] Mr Miller also relevantly advised the Appellant: 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 Relations Commission Industrial Registry will be able to provide further information about public service appeal procedures (www.qirc.qld.gov.au; Tel: 1300 592 987). [16] On 30 June 2022, the Department advised the Appellant that she would be remunerated from the date upon which she provided evidence in support of a medical exemption. [17] By appeal notice filed on 30 June 2022, the Appellant appeals against Mr Miller's decision that she will not be repaid for the period she was suspended without remuneration (the Decision). The decision subject of this appeal [18] On p 3 of the Appeal Notice, the Appellant identifies the type of decision being appealed as "a decision about suspension without pay". Notwithstanding, the rest of the contents of the Appeal Notice are consistent with the conclusion that the decision being appealed against is a "fair treatment decision". [19] In the Appeal Notice, the Appellant identifies the date she received the decision she seeks to appeal as 24 June 2022, indicates she is lodging her appeal notice within the 21 day time limit and she has attached a copy of the decision she is appealing. Further, in her original correspondence to the Industrial Registry, the Appellant stated, "the decision I am appealing is contained in this email. Could you please advise if I have selected the wrong 'Type of decision being appealed' and I will resubmit the request under the correct type." [20] The Appellant attached correspondence dated 24 June 2022 to the Appeal Notice and that correspondence outlines the determination that the Appellant will not be repaid for the period she was suspended without pay. I have identified that correspondence as the Decision subject of this appeal which is consistent with the Appellant's submission in her Appeal Notice that "I am requesting an appeal to the Department of Education's decision to not repay me for the period I was suspended without pay." [21] In her written submissions, the Appellant subsequently made the vague and ambiguous submission that: … the appellant seeks direction as to whether this application is more appropriately determined as a suspension without pay decision (as originally appealed), or a fair treatment decision under s 194(1)(eb) of the Public Service Act 2008 (Qld), having regard to the fact that this decision merely asserts non-repayment of suspension without pay, and s 194(1)(eb) may be restricted to the -- 4 of 12 -- 5 originating suspension without pay decision. However, as previously stated, the appellant was not consistently informed of their appeal rights. [22] Section 194(1)(bb) of the PS Act provides that an appeal may be made against a decision to suspend a public service employee without entitlement to normal remuneration under s 137. However, the original decision to suspend the Appellant without remuneration was made on 25 January 2022 and therefore the filing of an appeal on 30 June 2022 would be well out of time given s 564(3) of the Industrial Relations Act 2016 (Qld) (the IR Act) requires that an appeal be lodged within 21 days after the day the decision appealed against is given. [23] The Appellant's submissions, at times, appear to indicate that she would also like this appeal to deal with the original suspension without pay decision – however that is at odds with the original Appeal Notice. In any event, as I have outlined above, an appeal against the original suspension without remuneration decision would be well out of time and the Appellant has hinted that their excuse for such is that the Department did not advise her of her appeal rights. However, although advising the Appellant of her appeal rights would have been a courtesy, it is not a requirement. It is also the case that by 17 January 2022, the Appellant had obtained the services of Supportah Australia Pty Limited1 t/a IR Claims acting for Red Union Support Hub who asserted that their "clients are fully appraised of their rights."2 Clearly, both contentions cannot be true. [24] I will proceed on the basis that the decision contained in the correspondence dated 24 June 2022 to not repay the Appellant for the period she was suspended without pay – is the decision subject of this appeal. That is, a decision the Appellant contends is unfair and unreasonable – i.e., a fair treatment decision appealable under s 194(1)(eb) of the PS Act.3 The subsequent intimations that the Appellant may also seek to appeal the suspension without remuneration decision are not accepted – the Appellant would need to file a separate appeal for that purpose and apply for that appeal to be heard out of time. Appeal principles [25] Section 562B(2)-(3) of the IR Act provides that the appeal is decided by reviewing the decision appealed against "to decide whether the decision appealed against was fair and reasonable". [26] The appeal is not conducted by way of re–hearing, but rather involves a review of the decision arrived at and the associated decision–making process. [27] Findings made by the Respondent, which are reasonably open to it, should not be disturbed on appeal. Even so, in reviewing the decision appealed against, the Commission may allow other evidence to be taken into account. 1 Australian Proprietary Company, Limited by Shares. 2 Letter from Ms C. Dekker, Red Union Support Hub to Ms G. Gilles-Day, 17 January 2022, 7. 3 The Appellant subsequently expressed that this course is "the preference of the appellant" in her submissions in reply filed 1 August 2022. -- 5 of 12 -- 6 [28] The relevant principles in considering whether a decision is 'unreasonable' were enunciated by Ryan J in Gilmour v Waddell & Ors (emphasis added, citations removed):4 The focus of a review of the reasonableness, or unreasonableness, of a decision is on whether the decision is so unreasonable that it lacks intelligent justification in all of the relevant circumstances. The legal standard of unreasonableness is to be considered by reference to the subject matter, scope and purpose of the statute conferring the power. A court considering an argument that a decision is unreasonable is not undertaking a merits review. If a decision may be reasonably justified, then it is not an unreasonable decision, even if a reviewing court might disagree with it. The pluarity in Li said: … when something is to be done within the discretion of an authority, it is to be done according to the rules of reason and justice. That is what is meant by ‘according to law'. It is to be legal and regular, not vague and fanciful … … there is an area within which a decision-maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be applied for that of a decision-maker … … it is necessary to look to the scope and purpose of the statute conferring the discretionary power and its real object … The legal standard of reasonableness must be the standard indicated by the true construction of the statute. It is necessary to construe the statute because the question to which the standard of reasonableness is addressed is whether the statutory power has been abused. … Unreasonableness is a conclusion which may be applied to a decision which lacks an evidence and intelligible justification. Submissions [29] In accordance with the Directions Order issued on 4 July 2022, and as subsequently amended, the parties filed written submissions. [30] Pursuant to s 451(1) of the IR Act, no hearing was conducted in deciding this appeal. The matter was decided on the papers. [31] I have carefully considered all submissions and annexed materials but have determined not to approach the writing of this decision by summarising the entirety of those documents. My focus is on determining whether the Decision appealed against is fair and reasonable so I will instead refer only to the parties' key positions in my consideration of this appeal. 4 [2019] QSC 170, [207]-[210], citing Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, [63]- [76]. -- 6 of 12 -- 7 The Appellant's submissions [32] The Appellant submits the Decision is unfair and unreasonable because: • the Appellant was available, ready and willing to work during the course of her suspension; • the Appellant is able to perform her job remotely in full; • the Appellant has contacted the Department to request a risk assessment and to consider alternative arrangements to allow her to continue working as a teacher; • the Department has not considered all other reasonable alternatives; • the Department failed to consult or engage with the Appellant in order to consider her individual situation; • the Appellant was offered to work from home once she provided a lawful, valid exemption in June 2022, prior to the revocation of the mandate; • the Appellant was available to work during the period of suspension without the need to attend a high risk setting; • pursuant to cl 6.6 of Directive 16/20, an employee must be reimbursed for remuneration the employee does not receive during their suspension if a decision on discipline has been made that does not result in termination of their employment; and • the Appellant has never been required to attend inreach or outreach events and all staff meetings are conducted virtually. The Department's submissions [33] The Department submits the Decision is fair and reasonable because: • the Appellant is the subject of a current disciplinary process which commenced on 10 June 2022 and that process has not yet been finalised; • the Appellant chose not to comply with the Direction – her position was that she could not provide "valid and informed consent regarding this mandated medical procedure" until she had been provided with a risk assessment; • there is no lawful basis upon which the Appellant could request access to a risk assessment undertaken by the Department in relation to vaccines; • although the Appellant eventually advised the Department that she had a "valid lawful exemption" to the requirements of the Direction, she did not do so until she received the show cause notice on 10 June 2022; -- 7 of 12 -- 8 • the Appellant did not hold a medical exemption from the requirements of the Direction at the time she was suspended from duty without pay – the Appellant only notified the Department she held an exemption almost five months after she had been suspended without pay; • in the absence of a valid exemption from the Direction, the Appellant was not lawfully able to attend the school to perform her usual duties; • the Appellant was not available to work because she was in breach of the CHO Direction and therefore could not lawfully enter a high risk setting; • the Appellant was reimbursed her pay from the date upon which she provided the required evidence of her medical contraindication; • to the extent the Appellant claimed there were other "reasonable alternatives" to COVID-19 vaccination – the Appellant is not entitled to determine how she will comply with the Direction; • the school offers educational services to both home-based and school-based learners and was therefore a high-risk setting for the purpose of the CHO Direction; • it was not reasonable for the Appellant to have expected her role to be accommodated remotely on a full-time basis as an alternative to complying with her obligations under the Direction; • all reasonable alternatives were considered; • by choosing not to be vaccinated, the Appellant made herself unavailable for work for reasons other than being suspended; and • cl 6.10 of Directive 16/20 applies and accordingly, the Appellant is not entitled to be reimbursed for remuneration during the period of suspension without pay. The relevant provisions of the applicable instruments [34] Clause 6 of Directive 16/20 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. [35] On 11 December 2021, the COVID-19 Vaccination Requirements for Workers in a high-risk setting Direction commenced operation ('the First CHO Direction'). That Direction was issued by the Chief Health Officer. -- 8 of 12 -- 9 [36] Under the First CHO Direction, workers were not permitted to enter, remain in, work in, or provide services in a high-risk setting unless they were fully vaccinated.5 A 'high-risk setting' was defined as early childhood, primary and secondary educational settings, including schools.6 [37] The Direction relevantly provided (emphasis added): 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. 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. 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. [38] From 4 February 2022, 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). 5 COVID-19 Vaccination Requirements for Workers in a high-risk setting Direction, cl 9. 6 Ibid sch 1 (definition of 'High-risk setting') and sch 2. -- 9 of 12 -- 10 [39] The Second CHO Direction similarly provided that workers were not permitted to enter, remain in, work in, or provide services in a high-risk setting unless they were fully vaccinated7 and it also defined a 'high-risk setting' as early childhood, primary and secondary educational settings, including schools.8 [40] Subsequently, the Director-General of the Department issued Employment Direction 1/22 - COVID-19 Vaccinations which became effective from 10 March 2022 and was in similar terms to the Direction. Consideration [41] The Appellant has not persuaded me that the Decision is anything other than fair and reasonable. [42] In the analogous matter of Winter v State of Queensland (Department of Education),9 Deputy President Merrell held: [21] Secondly, Ms Winter's submission that it is unreasonable for the Department to state that staff were unable to attend work due to reasons outside the scope of their suspensions, without looking at each individual circumstance, is misconceived. On the facts before the Department, as presented to me by both parties, the only reason that Ms Winter was unable to attend work as from 15 February 2022, for a reason other than her suspension, was due to the operation of the Second CHO Direction which, in turn, applied to Ms Winter because of her unvaccinated state. In her appeal notice, Ms Winter states that she has medical reasons for not being vaccinated, but has led no evidence that she has appealed a decision not to grant her an exemption. [22] Thirdly, the Departmental Direction cites the First CHO Direction as being the legal instrument prohibiting unvaccinated workers attending Departmental high risk settings. The Departmental Direction does not purport to be the source of power prohibiting unvaccinated workers attending Departmental high risk settings. [23] On the other hand, the Departmental Direction was a direction, separate to the First and Second CHO Directions, given to certain public service employees employed in the Department by the Chief Executive of the Department. The Departmental Direction was a lawful direction that public service employees employed in the Department, who fell within the scope of the First CHO Direction, had to be vaccinated as provided for in the Departmental Direction. Pursuant to s 187(1)(d) of the PS Act, a public service employee may be liable for discipline if the employee contravenes, without reasonable excuse, such a direction. Pursuant to s 137 of the PS Act, if the Chief Executive of the Department reasonably believes a public service employee is liable to discipline under a disciplinary law, then the employee may be suspended from duty, either with or without remuneration. [24] The First and Second CHO Directions were lawfully given by the Chief Health Officer pursuant to s 362B of the Public Health Act 2005. That section is contained in ch 8 ('Public Health Emergencies'), pt 7A ('Particular powers for COVID-19 emergency') of that Act. … [25] Ms Winter was suspended without remuneration by virtue of a decision of the delegate of the Chief Executive of the Department which was made pursuant to s 137(4) of the PS Act. That decision was made, in part, due to the nature of the discipline to which the delegate reasonably believed Ms Winter was liable under a disciplinary law. That arose because Ms 7 The Second CHO Direction, cl 10. 8 Ibid sch 1 (definition of 'High-risk setting') and sch 2. 9 [2022] QIRC 350. -- 10 of 12 -- 11 Winter failed to comply with the Departmental Direction to be vaccinated. However, the only reason Ms Winter was not available to work at the school during the period of her suspension, other than the fact of her suspension, was the application of the Second CHO Direction. The Second CHO Direction applied to Ms Winter due to her unvaccinated state and because of the nature of her workplace. [26] If, at a point in time, Ms Winter became vaccinated during the period of her suspension (and the suspension remained on foot) such that she was compliant with the Second CHO Direction and thereby not prevented from working at the school, then cl 6.10 of the Suspension Directive would not apply to her from that point in time because (in the absence of any other reason) the only reason she would have been unavailable for work was her suspension. [43] Upon review of the material presented in this appeal, I similarly conclude that the only reason the Appellant was unable to attend work during her period of suspension without remuneration, other than by virtue of her suspension, was due to the operation of the Second CHO Direction which, in turn, applied to the Appellant. The Second CHO Direction applied to the Appellant due to her unvaccinated state and because of the nature of her workplace. [44] Upon obtaining a medical exemption during the period of her suspension, the Appellant was appropriately reimbursed from that date because the only reason she would have been unavailable for work from that date was her suspension. [45] Also in Winter v State of Queensland (Department of Education),10 Deputy President Merrell held: [33] Thirdly, even though Ms Winter states that she made herself available for work at the school during the period of her suspension without remuneration, the undeniable fact is that she was not available for work at the school during the period of her suspension for a reason other than her being suspended. That was the result of the application of the Second CHO Direction. Ms Winter, by her own declaration to hold herself out as being available to work at the school during the period of her suspension without remuneration, could not alter the application and effect of the Second CHO Direction. [46] Upon review of the material presented in this appeal, I similarly conclude that the Appellant's submission that she was willing and able to work during the period of her suspension without remuneration, is redundant. Despite an employee's willingness and perceived ability – the fact is that if they were unvaccinated and without an exemption – they were not available for work for a reason other than being suspended. That was the result of the application of the Second CHO Direction and could not be altered by the Appellant holding herself out as being willing and able to work. [47] The Appellant's arguments with respect to the availability of alternative arrangements have been dealt with by the Commission in numerous prior decisions. Section 137(3) of the PS Act requires the chief executive to "consider all reasonable alternatives, including alternative duties, a temporary transfer or another alternative working arrangement, that are available to the person." Although this is an issue that ought to have been raised (if at all) during an appeal of the suspension without remuneration decision itself – which the Appellant elected not to file – I will touch on this issue briefly. 10 [2022] QIRC 350. -- 11 of 12 -- 12 [48] From the parties' submissions I have discerned that although the Appellant could perform her duties from home, her usual workplace was the school. Although the Appellant may perform some duties from home, such arrangements could only reasonably be accommodated for short periods of time whereas during the period of suspension without remuneration, it was the Appellant's election not to comply with the Direction that had resulted in her inability to attend the workplace. [49] Although working remotely has been accommodated for many employees in the past due to lockdown periods etc., it is not reasonable for the Appellant to expect her role could be accommodated remotely on a full-time basis in the long term as an alternative to complying with the Direction. That is not an appropriate solution as it is not fair on the Appellant's colleagues and students. [50] For these reasons, the Decision was fair and reasonable. Conclusion [51] For the reasons I have given, the Decision was fair and reasonable and should be confirmed. Order [52] I make the following order: Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016, the decision appealed against is confirmed. -- 12 of 12 --