Cervenjak v State of Queensland (Department of Children, Youth Justice & Multicultural Affairs) [2022] QIRC 363

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Cervenjak v State of Queensland (Department of Children, Youth Justice & Multicultural Affairs) [2022] QIRC 363 PARTIES: Cervenjak, Andrew (Appellant) v State of Queensland (Department of Children, Youth Justice & Multicultural Affairs) (Respondent) CASE NO.: PSA/2022/682 PROCEEDING: Public Service Appeal – Appeal against disciplinary findings decision and appeal against suspension without pay decision DELIVERED ON: 20 September 2022 MEMBER: HEARD AT: Power IC On the papers ORDER: Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016 (Qld), the decisions appealed against are confirmed. CATCHWORDS: PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – Public Service Appeal – appeal against disciplinary findings decision – appeal against suspension without pay decision – whether decisions fair and reasonable – decisions fair and reasonable LEGISLATION: Human Rights Act 2019 (Qld), s 17 Industrial Relations Act 2016 (Qld), ss 562B and 562C Public Service Act 2008 (Qld), ss 11, 98, 137, 187 and 194 -- 1 of 12 -- 2 Work Health and Safety Act 2011 (Qld), ss 19, 27, 47 and 48 CASES: Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245 Gilmour v Waddell & Ors [2019] QSC 170 Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018) Reasons for Decision Introduction [1] Mr Andrew Cervenjak ('the Appellant') is employed by the State of Queensland (Department of Children, Youth Justice & Multicultural Affairs) ('the Department'; 'the Respondent') as a permanent Senior Analyst with Children and Youth Justice Systems. [2] On 9 February 2022, the Respondent's COVID-19 vaccination requirements policy ('the Policy') came into effect. [3] The Policy applies to all employees of the Respondent1 and requires employees to receive at least the first dose of a COVID-19 vaccine by 18 February 2022, a second dose of a COVID-19 vaccine by 25 March 2022 and any subsequent, or additional, doses of a COVID-19 vaccine to continue to be 'fully vaccinated' by a date determined by the chief executive.2 The Policy further outlines that an employee who is absent from the workplace is expected to comply with the Policy prior to returning to their usual role. [4] Clause 2.4 of the Policy provides that, in very limited circumstances, an employee may request a delay to comply with the Policy, noting that an approval of a delay is not an 'exemption' to comply with the vaccination requirements of the Policy and is not appropriate where the employee has a recognised medical contraindication under cl 4.1. [5] Clause 4.1 of the Policy provides that an employee that is determined to have a recognised medical contraindication is not required to comply with the vaccination requirements of the Policy for the period specified in the evidence relating to the medical contraindication. [6] Where an employee does not comply with the requirements of the Policy, a discipline process may be commenced under Directive 14/20 Discipline.3 1 The Policy, cl 1.3. 2 The Policy, cl 1.8. 3 The Policy, cl 3.1. -- 2 of 12 -- 3 [7] By letter dated 3 March 2022, Mr Darrin Bond, Assistant Director-General, outlined the following allegation made against the Appellant: You failed to comply with the requirement to receive your first dose of the COVID-19 vaccination by18 February 2022. [8] The letter further informed the Appellant that consideration was being given to suspending the Appellant from duty without remuneration. The Appellant was provided with 21 calendar days to show cause as to why disciplinary findings should not be made and why the Appellant should not be suspended from duty without remuneration. [9] On 22 March 2022, the Appellant provided his response to the Respondent. [10] By letter dated 27 June 2022, Ms Erin Earle, Acting Assistant Director-General, Children and Youth Justice System Reform – Unify, advised the Appellant that: (a) the allegation as outlined in the letter dated 3 March 2022 is substantiated on the balance of probabilities ('disciplinary finding decision'); and (b) he be suspended from duty without remuneration from 4 July 2022 to 7 October 2022 ('suspension without pay decision'). (together 'the decisions') [11] By appeal notice filed on 18 July 2022, the Appellant appealed against the decisions, pursuant to s 194 of the Public Service Act 2008 (Qld) ('the PS Act'). Appeal principles [12] The appeal must be decided by reviewing the decision appealed against.4 Because the word 'review' has no settled meaning, it must take its meaning from the context in which it appears.5 An appeal under ch 11 pt 6 div 4 of the Industrial Relations Act 2016 (Qld) ('the IR Act') is not by way of rehearing,6 but involves a review of the decision arrived at and the decision making process associated therewith. [13] The stated purpose of such an appeal is to decide whether the decision appealed against was fair and reasonable.7 The issue for determination is whether the decisions were fair and reasonable. Findings which are reasonably open to the decision maker are not expected to be disturbed on appeal. 4 Industrial Relations Act 2016 (Qld) s 562B(2) ('IR Act'). 5 Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245, 261. 6 Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018), 5 as to the former, equivalent provisions in s 201 of the PS Act. 7 IR Act s 562B(3). -- 3 of 12 -- 4 What decisions can the Industrial Commissioner make? [14] In deciding this appeal, s 562C of the IR Act provides that the Industrial Commissioner may: (a) confirm the decision appealed against; or (b) set the decision aside and substitute another decision; or (c) set the decision aside and return the issue to the decision maker with a copy of the decision on appeal and any directions considered appropriate. Grounds of Appeal [15] In the appeal notice, the Appellant disagrees with the decision and contends that the decision is unfair, inappropriate and unreasonable as it does not take into consideration and does not properly address the following facts, that: (a) the Appellant tested positive to COVID-19 on 24 May 2022 which was reported to the Queensland government on 26 May 2022. Accordingly, the Policy should not have applied for at least three months after recovery in accordance with the Queensland government guidelines regarding after having COVID-19; (b) the Appellant's past diagnosis of 'acute glomerulonephritis' is a potential medical contraindication and the Appellant's overseas hospital medical statement was previously provided to the Respondent's Vaccination Exemption Committee ('VEC'). However, the VEC rejected the Appellant's exemption application without providing a medical reason; (c) the Appellant is unable to give his full, free and informed consent in accordance with s 17 of the Human Rights Act 2019 (Qld) to the mandatory COVID-19 vaccination requirements as the Respondent has yet to inform the Appellant how the COVID-19 vaccination would impact his body; and (d) there is no mandatory COVID-19 vaccination requirement under the relevant agreements and contract of employment. Appellant's submissions [16] The Appellant, in his submissions, reiterates the contentions made in the appeal notice. The Appellant further submits that: (a) acute glomerulonephritis is a potential medical contraindication and COVID-19 vaccines could cause the Appellant to have potential adverse reaction, including being at risk of experiencing a relapse; (b) the VEC did not provide any reasons when denying the Appellant's application for an exemption; -- 4 of 12 -- 5 (c) there is a precedent in the Child Safety and Youth Justice Certified Agreement 2021 ('the Agreement') which provides that hepatitis vaccinations are voluntary for youth detention centre employees; and (d) when flexible work arrangements were introduced in 2020, the Appellant signed a statement that he will consider taking a COVID-19 vaccine when it becomes available. The Appellant have considered it and is still considering it. [17] The Appellant argues that the allegation should be considered invalid, submitting that the finding made against the Appellant is unfair because the Policy was introduced while he was on leave from 4 January 2022 to 25 February 2022, without consultation, and that the Appellant was considered to have not complied with the Policy from 18 February 2022. The Appellant further submits that the finding is inconsistent with cl 1.8 of the Policy which provides that the Appellant should not have considered to be undertaking a role for the purposes of the Policy while on leave. Respondent's submissions [18] The Respondent submits that the decision with respect to the disciplinary finding was fair and reasonable. [19] The Respondent submits, in summary, that: (a) the Appellant was given a reasonable opportunity to respond and did so; (b) the Appellant has admitted that he has not received a COVID-19 vaccination; (c) the Appellant's application for an exemption fails to provide a COVID-19 vaccine medical exemption recorded on the Australian Immunisation Register as required under the Policy. The VEC is unable to make an assessment given they are neither medically trained nor aware of each employee's personal medical history; (d) the Appellant's submissions may be categorised as vaccine hesitancy or personal preference which would not justify the granting of a delay or exemption under the Policy and does not result in it being unreasonable for the Respondent to require compliance with the direction to receive a COVID-19 vaccine; (e) at the time the decision was made, the Appellant had neither notified the Respondent of his positive RAT test dated 24 May 2022 nor used it as a basis for an application for a medical exemption pursuant to the Policy; (f) in the absence of any formal application for a medical exemption and without providing evidence which would constitute a medical contraindication under the Policy, the Appellant remains in breach of the Policy; (g) the Appellant's absence from the workplace at the time the Policy was implemented does not explain his ongoing failure to comply with the Policy since his return from leave; -- 5 of 12 -- 6 (h) alternative working measures, such as working from home, are not an appropriate long term solution to the Appellant's decision not to comply with a lawful and reasonable direction; and (i) the Appellant remains free to not receive the COVID-19 vaccines or discontinue his employment with the Respondent at any time. As outlined in the decision, any alleged limits of the Appellant's human rights are reasonable and demonstrably justified in the interests of public health and safety. [20] The Respondent submits that the decision to suspend the Appellant without pay was fair and reasonable, outlining the following submissions: a) Mr Cervenjak was only suspended without pay after the disciplinary finding was made. b) Mr Cervenjak's response indicates he does not intend to comply with the direction to receive a COVID-19 vaccine now or in the immediate future. It is the Department's position that the Policy will remain in force for the foreseeable future. c) Compliance with the Policy is a condition of Mr Cervenjak's employment, which makes his non-compliance with the direction a serious matter. d) Given the seriousness of the substantiated allegation and the department's need to appropriately manage the risk arising from Mr Cervenjak's non-compliance with the Policy, Ms Earle determined no reasonable alternatives to suspension without pay were available. e) The financial impact of suspension without pay is only one factor to be considered and must be balanced with the Department's obligation to ensure the effective, efficient and appropriate use of public resources, including the spending of public funds. f) Given his failure to comply with the direction to receive a COVID-19 vaccine, the consultation undertaken by the Department, the nature of the discipline and the time it may take to conclude a disciplinary process, Ms Earle determined it was not responsible or appropriate to allow Mr Cervenjak to continue to receive remuneration. g) Mr Cervenjak may seek alternative employment with another employer during his suspension. h) Mr Cervenjak may apply to access his paid leave entitlements during the suspension, and has been approved to do so until 7 October 2022, which is the current end date of his suspension without pay. [21] The Respondent further submits that an industrial instrument was not relied upon in enacting the Policy. The Respondent outlines that the Policy was developed in accordance with ss 19 and 27(1) of the Work Health and Safety Act 2011 (Qld) ('WHS Act'), ss 11 and 98 of the PS Act and the Director-General's power at common law to provide lawful and reasonable directions to employees. [22] Prior to the introduction of the Policy, the Respondent submits that it consulted with employees and registered unions with respect to the Respondent's comprehensive and tailored risk assessments and the proposed Policy, in accordance with its obligations under the Agreement and the WHS Act. The Respondent highlights that emails were sent to all affected employees on 17 January 2022, inviting them to provide feedback by the Director-General. The Respondent submits that the large majority of employees and all employer representatives consulted were supportive of the Policy and consequently, has complied with the Agreement and ss 47 and 48 of the WHS Act. Consideration [23] Consideration of an appeal of this kind requires a review of the decisions to determine if the decisions were fair and reasonable in the circumstances. -- 6 of 12 -- 7 Disciplinary finding decision [24] The allegation considered by Ms Earle was outlined in the decision in the following terms: You failed to comply with the requirement to receive your first does of the COVID-19 vaccination by 18 February 2022. [25] Ms Earle outlined her reasons for substantiating the allegation and making a disciplinary finding, including the following: … g) The policy set out the vaccination requirements for all employees – specifically employees must: a. have received at least the first does of a COVID-19 vaccine by 18 February 2022, and b. have received a second dose of a COVID-19 vaccine by 25 March 2022, and c. where subsequent, or additional, doses of a COVID-19 vaccine are required for an employee to continue to be considered 'fully vaccinated', have received the required COVID-19 vaccination by a date as determined by the chief executive under the policy. h) Clause 1.9 of the policy requires employees to provide evidence confirming they have received the required number of doses of the vaccine and outlines that failure to comply may result in a disciplinary process. i) You are required to comply with the requirement to receive a COVID-19 vaccination outlined within clause 1.8 of the policy unless your circumstances are relevant to clause 2.4, 2.5 and/or 4.1 regarding delays due to exceptional circumstances and medical exemptions, and you have met the requirements within those clauses. Departmental records indicate you applied for an exemption and your application was subsequently not approved by the Vaccination Exemption Committee (VEC) on 5 May 2022. I note you have not applied for any further exemptions or a delay from requirements under the policy via the VEC. j) You were required to have received your first dose of the COVID-19 vaccination by 18 February 2022 and to provide evidence of that vaccination dose as soon as practicable. Departmental records indicate you have not provided any evidence of having received the first vaccination dose. k) In failing to receive at least the first dose of a COVID-19 vaccination by 18 February 2022 and provide evidence of that vaccination dose, you may have failed to comply with this policy and failed to comply with a direction given to you by the Director-General that took effect 9 February 2022. … [26] The Appellant submits that the Policy did not apply to him on the basis that he was on leave at the time the Policy was introduced. The Appellant refers to cl 1.8 of the Policy which provides that an employee who is absent from the workplace on long term leave or secondment and not currently undertaking their usual role in the Department 'is not considered to be undertaking a role for the purposes of this policy'. [27] Clause 1.8 of the Policy does not excuse the Appellant from compliance with the Policy simply on the basis that he was not at work at the time it was introduced. The Policy requires that all employees are required to be compliant with the Policy before there -- 7 of 12 -- 8 return to their role in the Department. The Appellant returned to his role in the Department following his leave and was consequently bound by the terms of the Policy. [28] The Appellant submits that he has a potential medical contraindication in the form of 'acute glomerulonephritis'. The Respondent submits that the Appellant emailed the VEC applying for an exemption, attaching a hospital statement written in Croatian with no accompanying translation. The Appellant advised the VEC the statement stated he was hospitalised from 18 July 1969 to 22 August 1969 with glomerulonephritis. The statement was not accepted as evidence of a medical contraindication, as the required evidence of a medical contraindication is a COVID-19 vaccine medical exemption recorded on the Australian Immunisation Register. The Respondent reasonably submits that the reason this evidence is required is because an employee's medical practitioner is in the best position to assess an employee's medical fitness for vaccination. The Appellant's application for a medical exemption was not approved and hence the Appellant was required to comply with the requirements of the Policy. [29] The Appellant further submits that the Human Rights Act 2019 (Qld) is engaged as the Policy involves 'medical or scientific experimentation or treatment without the person's full, free and informed consent'. The Appellant has not been subject to medical experimentation without free and informed consent. The COVID-19 vaccinations are not medical experimentation as they have been approved for use by the Australian Technical Advisory Group on Immunisation and the Therapeutic Goods Administration. Importantly, the Appellant remains free to not receive the COVID-19 vaccinations. There may well be consequences for the Appellant's employment, however this does not remove the Appellant's freedom to refuse vaccinations. Ms Earle considered the human rights of the Appellant in her decision and determined that any limits were reasonable and justified in the interests of public health and safety. I am satisfied that the decision demonstrated consideration of the Appellant's human rights. [30] The Appellant submits that the vaccination requirement is not mentioned in the Agreement, contract of employment or public service agreement. I accept the Respondent's submission that the Department has not relied upon an industrial instrument to introduce the Policy, rather it was introduced pursuant to the Department's obligations under the WHS Act. There is no requirement for the lawful and reasonable direction outlined in the Policy to be contained in an industrial instrument before it can be implemented. [31] The Appellant submits that he tested positive on 24 May 2022 and as a result of natural immunity, does not consider himself to be a threat to other vaccinated or unvaccinated staff. The Respondent submits that, at the time Ms Earle issued the disciplinary finding decision, the Appellant had neither notified the Department of this matter nor used it as a basis for an application for a medical exemption pursuant to cl 4.1 of the Policy. I accept the Respondent's submissions that in circumstances where the Appellant has not applied for a medical exemption under the Policy because of his contraindication to COVID-19, and without having provided the Department with evidence that would constitute a medical contraindication under the Policy, the Appellant remains in breach of the Policy. [32] The Appellant submits that he should be permitted to alter his working arrangements indefinitely to allow him to work from home on a full time basis. In my view, the Department provided a reasonable justification for refusing this proposal on the basis that -- 8 of 12 -- 9 such an arrangement is not an appropriate long-term solution to the Appellant's decision not to comply with a lawful and reasonable direction where in-person engagement with colleagues and stakeholders is a regular necessity to the fulfilment of the Appellant's role. [33] The Appellant does not dispute that he has not received a COVID-19 vaccination. It was therefore reasonable for Mr Earle to substantiate the allegation based on the failure of the Appellant to provide evidence of compliance with the requirement to receive the first dose of a COVID-19 vaccine. [34] Ms Earle determined that, based on the substantiated allegation, the Appellant contravened without a reasonable excuse, a direction given to him as a public service employee by a responsible person pursuant to s 187(1)(d) of the PS Act. [35] I accept the Respondent's characterisation of the Appellant's submissions as vaccine hesitancy which does not justify the granting of a delay or exemption under the Policy. On the basis that the Appellant did not follow a lawful direction given without a reasonable excuse, it was open to Ms Earle to make the disciplinary finding. Suspension without pay decision [36] In making the decision to suspend the Appellant without remuneration, Ms Earle stated the following: In determining whether your suspension should be without remuneration, I have considered the following: • Your failure to adhere to lawful and reasonable directions provided within the department's COVID-19 Vaccination requirements – all staff policy. • The impact on your ability to perform certain aspects of your role due to your failure to follow the lawful and reasonable direction to become vaccinated, this may include attendance at certain settings. • The appropriate use of public money in continuing to pay you in circumstances where you have failed to follow a lawful and reasonable direction and are unable to undertake the inherent duties of your role. • Whilst you have not provided any specific financial impact or information, I have taken into consideration the likely financial impact this decision may have on your ability to pay bills and cover the cost of living. In accordance with section 137(3) of the PS Act, I have again considered whether there are any reasonable alternatives to suspending you from duty, including temporary relieving arrangements in alternative duties (either in your current workplace or another workplace), a transfer, or another alternative working arrangement. In considering this, I have again undertaken an assessment of the allegation and your role within the department, and whether your continuation in the role or another role presents any potential risk to the department, its employees, clients or others. In my view having regard to the nature of the allegation against you and having carefully considered what duties your role as a Senior Analyst is required to perform, there is an unacceptable risk to the health and safety of clients, other staff, yourself, and the department if you were to remain in your role. Your continued workplace presence whilst an allegation of this nature is on foot, and where the public could expect to find public servants adhering to the policies of the department, is inappropriate. Additionally, your continued workplace presence, in your current role or an alternative role, would be inconsistent with the department's responsibility to ensure its duty of care to the department's employees and clients. In any event, the undertaking of alternative duties cannot be sustained for the foreseeable future. -- 9 of 12 -- 10 [37] The decision to suspend an employee without remuneration is made pursuant to s 137(1)(b) of the PS Act and Directive 16/20 Suspension ('the Suspension Directive'). [38] Section 137 of the PS Act relevantly provides for the suspension of a public service employee: 137 Suspension (1) The chief executive of a department may, by notice, suspend a person from duty if the chief executive reasonably believes— (a) for a public service officer—the proper and efficient management of the department might be prejudiced if the officer is not suspended; or (b) for a public service employee—the employee is liable to discipline under a disciplinary law. (2) The notice must state— (a) when the suspension starts and ends; and (b) whether the person is entitled to remuneration for the period of the suspension; and (c) the effect that alternative employment may, under subsection (5), have on any entitlement to remuneration. (3) However, before suspending the person, the chief executive must consider all reasonable alternatives, including alternative duties, a temporary transfer or another alternative working arrangement, that are available to the person. (4) A public service employee is entitled to normal remuneration during a suspension, unless— (a) the person is suspended under subsection (1)(b); and (b) the chief executive considers it is not appropriate for the employee to be entitled to normal remuneration during the suspension, having regard to the nature of the discipline to which the chief executive believes the person is liable. … (8) The chief executive may cancel the suspension at any time. (9) In suspending a public service employee under this section, the chief executive must comply with— (a) the principles of natural justice; and (b) this Act; and (c) the directive made under section 137A. … [39] Clause 6 of the Suspension Directive relevantly outlines the factors that must be taken into consideration in considering suspending a public service employee without remuneration: 6. Suspension without remuneration 6.1 Section 137(4) of the PS Act provides that the chief executive may decide that normal remuneration is not appropriate during a period of suspension where the employee is a public service employee liable to discipline. 6.2 A decision that normal remuneration is not appropriate during the suspension will usually occur after a period of suspension with remuneration but may be made from the start of the suspension. -- 10 of 12 -- 11 6.3 In deciding that normal remuneration is not appropriate, the factors the chief executive is to consider include: (a) the nature of the discipline matter (b) any factors not within the control of the agency that are preventing the timely conclusion of the discipline process (c) the public interest of the employee remaining on suspension with remuneration. 6.4 A decision to suspend an employee without remuneration is subject to the principles of natural justice. Natural justice is the right to be given a fair hearing and the opportunity to present one's case, the right to have a decision made by an unbiased or disinterested decision maker and the right to have that decision based on logically probative evidence1. As part of the suspension process: (a) The employee must be given the opportunity to respond to the proposed suspension without remuneration prior to the decision being made by the delegate. This can occur through a 'show cause' process at the time of notification of the initial suspension on normal remuneration, or at any subsequent stage during the suspension. (b) The employee is to be provided with written notice, including the particulars required by section 137 of the PS Act, and reasons for the decision that suspension is without normal remuneration. (c) The chief executive must provide the employee with a minimum of 7 days from the date of receipt of a show cause notice to consider and respond to the notice, having regard to the volume of material and complexity of the matter. The chief executive may grant, and must consider any request for, an extension of time to respond to a show cause notice if there are reasonable grounds for extension. (d) If the employee does not respond to a show cause notice or does not respond within the nominated timeframe in clause 6.4(b) and has not been granted an extension of time to respond, the chief executive may make a decision on grounds based on the information available to them. … [40] Section 137(3) of the PS Act requires consideration be given to whether there are any reasonable alternatives to suspension from duty. Ms Earle considered that the Appellant's inability to attend the workplace whilst unvaccinated limited his ability to perform the inherent requirements of his role and limited his ability to perform any other role within the Department. Ms Earle determined that it was appropriate to support the Appellant's continued attendance in the workplace through localised risk management at the time, however, noted that this was not a sustainable approach. This was a reasonable determination. [41] The Appellant was only suspended without pay after the disciplinary finding was made. The Respondent submits that, given the seriousness of the substantiated allegation and the need to appropriately mange the risk arising from the Appellant's non-compliance with the Policy, there were no reasonable alternatives to suspension without pay. I accept the determination that it would not be appropriate for the Department to continue to pay the Appellant in circumstances where the allegation has been substantiated. I am satisfied that Ms Earle's decision to suspend the Appellant without remuneration was made consistent with the statutory considerations and was therefore fair and reasonable. [42] The relevant principles in considering whether a decision is 'unreasonable' were outlined by Ryan J in Gilmour v Waddell & Ors:8 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. 8 [2019] QSC 170. -- 11 of 12 -- 12 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.9 [43] Applying the principles outlined above, I do not consider that the decisions lack justification in the circumstances. Based on the information before me, I am satisfied that the decisions were fair and reasonable. Order [44] I make the following order: Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016 (Qld), the decisions appealed against are confirmed. 9 Ibid [207]-[209]. -- 12 of 12 --