Duck v State of Queensland (Department of Education) [2022] QIRC 347

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: PARTIES: Duck v State of Queensland (Department of Education) [2022] QIRC 347 Duck, Toni (Appellant) v State of Queensland (Department of Education) (Respondent) CASE NO: PSA/2022/688 PROCEEDING: Public Service Appeal – Appeal against a suspension without pay decision DELIVERED ON: 7 September 2022 MEMBER: Pidgeon IC HEARD AT: On the papers ORDERS: The Appellant's application to allow their appeal to be started within a longer period is dismissed. CATCHWORDS: PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – Public Service Appeal – appeal against a suspension without pay decision – where the appellant was suspended without pay for not complying with Direction 1/21 - COVID-19 Vaccinations – where appellant submits that decision is unfair and unreasonable - appeal lodged out of time – whether extension of time should be granted – extension of time refused. LEGISLATION: Department of Education Employment Direction 1/21 Industrial Relations Act 2016 s 564 Public Service Act 2008 ss 137, 194 Public Service Commission Suspension Directive 16/20 cls 5, 6 -- 1 of 8 -- 2 CASES: Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 Brodie-Hanns v MTV Publishing Limited (1995) 67 IR 298 Chapman v State of Queensland [2003] QCA 172 Cullen v State of Queensland (Queensland Health) [2021] QIRC 258 Erhardt v Goodman Fielder Food Services Limited (1999) 163 QGIG Hunter Valley Developments Pty Ltd v Cohen (1994) 3 FCR 344 Schimke v State of Queensland (Department of Education) [2022] QIRC 136 Thorley v State of Queensland (Department of Education) [2022] QIRC 133 Reasons for Decision Appeal Details [1] Ms Duck is employed by the State of Queensland (Department of Education) as an Early Childhood Officer (AO5). [2] On 11 February 2022, Ms Duck was suspended from duty without pay. The suspension without pay decision was made on the basis that Ms Duck: did not have a diagnosed medical contraindication or other qualifying exceptional circumstance serving to exempt her from Department of Education Employment Direction 1/21; and had not complied with Direction 1/21. [3] On 24 June 2022, Ms Duck received a letter informing her that the suspension from duty without pay would cease at 1:00 am on 30 June 2022. The letter said that regular payments would start in the next available pay cycle and directed Ms Duck to resume duty at her workplace on the first workday of Term 3, 2022. [4] The letter confirmed that in accordance with cl 6.10 of the Public Service Commission Suspension Directive 16/20, on the basis that she was not available to work during the period of suspension as she was not compliant with the Direction, Ms Duck would not be repaid for the period she was suspended without pay. [5] The letter also informed Ms Duck that if she believed the decision was unfair and unreasonable, she may lodge an appeal under the appeal provisions of the Public Service Act 2008. -- 2 of 8 -- 3 [6] On 1 August 2022, Ms Duck lodged an appeal against the decision of 11 February 2022 to suspend her without pay. The reason provided by Ms Duck in applying for an extension of time to lodge her appeal notice after 5pm on the 21st day after she was given the decision was: The suspension without pay decision (11.02.22) offered no information regarding a possible appeal process. The cancellation of suspension decision was the only time the Department had offered an appeal on their granted decisions, stating: 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. This did not outline any timeframes for lodging an appeal nor was an appeal mentioned within any correspondence through the process until 24.06.22. My requests for information regarding this process were not responded to by the Department, including a request for an extension of time to response to the suspension without pay decision. I maintain that a working from home arrangement could have been reached in my circumstance but was not considered. [7] On 1 August 2022, I issued directions that the parties file submissions addressing the application for an extension of time to file the appeal. The Legal Framework: Jurisdiction [8] A member of the Commission may allow an appeal to be started within a longer period.1 [9] In exercising discretion to extend time to lodge an application or appeal, there are principles that have been used for guidance. Those principles are commonly: • Special circumstances need not be shown, but an applicant for extension must show an acceptable explanation for the delay and that it is fair and equitable in the circumstances to extend time; • action taken by the applicant, other than by making an application under the relevant Act, is relevant to the consideration of the question of whether an acceptable explanation for the delay has been furnished; • any prejudice to the respondent, including any prejudice in defending the proceedings occasioned by the delay, is a material factor militating against the grant of extension; • the merits of the substantive application are taken into account when considering whether an extension of time should be granted; and • consideration of fairness as between the applicant and other persons in a like position are relevant to the exercise of discretion.2 1 Industrial Relations Act 2016 s 564(2). 2 Hunter Valley Developments Pty Ltd v Cohen (1994) 3 FCR 344, 348 (Wilcox J); Brodie-Hanns v MTV Publishing Limited (1995) 67 IR 298, 299-300 (Marshall J). -- 3 of 8 -- 4 [10] The application of statutory time limits was addressed by McHugh J in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541: A limitation period should not be seen therefore as an arbitrary cut off point unrelated to the demands of justice or the general welfare of society. It represents the legislature's judgment that the welfare of society is best served by causes of action being litigated within the limitation period, notwithstanding that the enactment of that period may often result in a good cause of action being defeated. Against this background, I do not see any warrant for treating provisions that provide for an extension of time for commencing an action as having a standing equal or greater than those provisions that enact limitation periods. A limitation provision is the general rule; an extension provision is the exception to it.3 [11] The Appellant bears the onus of convincing the Queensland Industrial Relations Commission to depart from the ordinary time limitations and hear the Appeal out of time.4 Submissions of the parties Respondent's submissions [12] The Respondent submits that an appeal of the suspension without pay decision is out of time and should not be heard for that reason. Section 564 of the Industrial Relations Act 2016 provides that a person's right to appeal, under Chapter 7 of the PS Act, lapses after the 21st day after the decision was given. [13] Ms Duck was required to lodge her appeal by 4 March 2022. The appeal was not filed until 1 August 2022 and in the context of a 21-day limitation period, the delay is significant. [14] The Respondent submits that the importance of the application of statutory time limits has been consistently recognised and should not be easily dispensed with.5 [15] The Respondent submits that it was open to Ms Duck to file an appeal against the decision when she was notified of the decision on 22 February 2022 and that she has not provided any compelling reason for the delay. [16] The Respondent says that if the Commission was to hear the appeal out of time, the prejudice to be suffered by the Department would be a relevant consideration, particularly where the delay itself is considered to give rise to a general presumption of prejudice to the Department. Further, the Respondent says that the prejudice is compounded by the fact that Ms Duck's appeal has low prospects of success. [17] The Respondent notes that its internal process was flawed in that Ms Duck's request for an extension of time to respond to the show cause notice was not responded to, however 3 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 553. 4 Cullen v State of Queensland (Queensland Health) [2021] QIRC 258, [35]; Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 554. 5 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; Erhardt v Goodman Fielder Food Services Limited (1999) 163 QGIG. -- 4 of 8 -- 5 the Respondent maintains that the Commission should decline to hear the Appeal on the basis that it is out of time and has limited prospects of success. Ms Duck's submissions [18] Ms Duck's submissions set out some background to the matter and state that on 25 January 2022, she requested an extension of time to respond to the show cause notice regarding suspension without pay as she was away from her residence on holiday with her children. [19] Ms Duck says that on 11 February 2022, the Respondent issued the suspension without pay decision. The decision letter stated that Ms Duck's response had been considered, however, a response had not been submitted by Ms Duck. Ms Duck says that no information about the appeal process was included in that correspondence. [20] Ms Duck says that the correspondence of 24 June 2022 lifting the suspension and directing her to resume duty on the first workday of Term 3 included information about the appeal process. [21] Ms Duck requests an extension of time to appeal the suspension without remuneration decision and asserts that there are inconsistencies in the way that appeal information has been provided to her. Ms Duck says that the Respondent did not provide any appeal information in any correspondence relating to the suspension decision until 24 June 2022 but that correspondence issued to her post 24 June 2022, including all disciplinary decisions, has included appeal information. [22] Ms Duck says that she has never been involved in any disciplinary action and was unaware of the appeals process until it was stated in correspondence dated 24 June 2022. [23] Ms Duck asserts that her request for an extension to show cause on the suspension without pay and the subsequent phone calls and emails she sent to the Respondent were not responded to. Ms Duck says that the reference in the suspension without pay decision to having received a response from Ms Duck was factually incorrect as she did not submit a response. [24] Ms Duck asserts that the Respondent's flawed process has resulted in a prejudice against her and that the principles of natural justice have not been upheld as is required by the Suspension Directive. Ms Duck says that had she been given an extension to show cause regarding the suspension without pay, her 'trajectory may have differed from what has transpired'. [25] Ms Duck requests that the Commission grant the extension of time to lodge the appeal on the basis of the Respondent's inconsistencies with providing timely appeal information within their correspondence to her; and what she says is the Respondent's failure to comply with the principles of natural justice regarding the show cause process. -- 5 of 8 -- 6 Consideration of submissions Explanation for delay and any action taken by Ms Duck [42] The length of the delay is 144 days. This is a significant delay. [43] It appears Ms Duck's explanation of the delay is that the Department did not provide her with appeal information in the letter 11 February 2022 suspending her without pay. [44] I have reviewed the letter and confirm that it did not include information about appeal rights. However, section 137(2) of the Public Service Act 2008 and cl 5 of the Suspension Directive 16/20 clearly state the information to be include in a suspension notice and do not mandate that appeal information be included. [45] If Ms Duck was aggrieved with the decision to suspend her without pay, it was within her capacity to find out what her options were. I do not accept that it was reasonable for Ms Duck to remain passive in the face of a suspension without pay decision until such time as she was informed that appeal rights existed some months later. Ms Duck could have undertaken her own research about actions she may take, and this included contacting the COVID Compliance Team using the details included in the suspension without pay letter. There is no evidence before me that Ms Duck actively sought information about her appeal rights. [46] I am not persuaded that the absence of advice about appeal rights in the suspension without pay decision provides a satisfactory explanation as to why Ms Duck's appeal was lodged over 140 days out of time. Prejudice to the parties [47] I note the Respondent's submissions regarding the prejudice it will suffer if the appeal is heard. Clearly, in circumstances where the suspension without pay left Ms Duck without income for some months, there is the potential for prejudice to be suffered by her if she does not have the opportunity to appeal the decision. However, for the reasons stated below, an appeal against the suspension without pay decision has limited prospects of success. [48] I am not satisfied that the potential prejudice to Ms Duck is such it should displace the statutory time limitation for lodging an appeal. Merits of the appeal [51] In Chapman v State of Queensland,6 de Jersey CJ, White and Atkinson JJ said: …in determining whether it is proper to grant the extension, it is appropriate to consider the merits of the substantive application…An extension of time will not be granted if the court considers the appeal to be plainly hopeless…7 6 [2003] QCA 172, [3]. 7 Ibid [3]. -- 6 of 8 -- 7 [52] Firstly, it is clear that Ms Duck requested an extension of time to provide her submission in response to the show cause regarding the suspension without pay and that she did not receive a response to this request. The Respondent agrees that it did not respond to Ms Duck's request and notes that the reference in the suspension without pay decision letter to the decision-maker having read Ms Duck's show cause response was the result of an administrative error. [53] The Respondent says that notwithstanding Ms Duck's request for an extension on the basis of being on a period of recreational leave, amongst other reasons provided, Ms Duck was capable and actively engaged in communication with the Respondent during the leave period at various junctures.8 [54] Further, the Respondent says that extensions were only granted to employees in extenuating circumstances and Ms Duck's circumstances would not have met the threshold for extension. [55] I agree that it would have been appropriate for the Respondent to reply to Ms Duck's request for an extension of time and to provide a response. However, in the absence of such a response, Ms Duck should have assumed that the request for an extension had not been granted and should have submitted a response to the extent she was able. [56] However, I have considered whether the outcome of the suspension without pay show cause process would have been different had Ms Duck provided a show cause notice. I have done this by reviewing the material available to me in this appeal which includes correspondence sent to the Department by Ms Duck on 2 January 2022 where she states that she was waiting to see her doctor on 19 January 2022 'to discuss my personal medical needs including the efficacy of the COVID-19 vaccines, and also the possibility of serious adverse reactions to the vaccines being mandated under this Directive'.9 [57] I have also reviewed the material Ms Duck attached to her submissions in this appeal which includes her response to the disciplinary show cause process. In a letter dated 24 June 2022, Ms Duck says that she believes that proper consideration was not given to alternatives to suspension that would have enabled her to continue undertaking her role. Ms Duck also questions why the Direction remained in place when the Federal Government lifted the State of Emergency on 17 April 2022. The letter goes on to include several pages of submissions where Ms Duck discusses consent; that the vaccine is in a clinical trial; that the medical procedure does not provide protection against infection; COVID-19 has not proven to be a significant threat to human health on a nationally significant scale; that she is not part of the very small portion of the general population who are at serious risk from COVID-19; risks arising from vaccines; that there are on average more deaths per day linked to vaccines than to COVID-19; vaccines are ineffective; it is unclear if there is sufficient insurance cover in the event she becomes injured by the vaccine; and finally, a number of laws protect her right of informed consent. Ms Duck's correspondence concludes by stating: 8 Respondent's submissions filed 18 August 2022, 43. 9 Ibid Attachment 3. -- 7 of 8 -- 8 Therefore I firmly believe that: • I will be exposed to an unreasonable risk of harm for which no suitable remedy, compensation and/or indemnification exists if I receive a COVID-19 vaccination. • Covid-19 vaccination is unnecessary and does not reduce infection or transmission risk. • I am entitled in law and conscience to decline a COVID-19 vaccination. [58] Ms Duck was a person to whom the Directive applied and she had not been granted an exemption from complying with the Direction. Ms Duck did not provide evidence of having complied with the Direction and so it was open to the decision-maker to form a reasonable belief that she was liable for discipline. [59] I note that it appears that Ms Duck argues that the suspension was not fair on the basis that the Department did not properly consider alternatives to suspension. Ms Duck also appears to be vaccine hesitant. [60] The Commission has found that accommodating employees remotely on a full-time basis for the period of time the Direction remained in place would not have been an appropriate solution nor fair on the employee's colleagues those to whom they provide services.10 Numerous decisions of this Commission have now established that where a person was required to perform their usual duties in a high-risk setting and did not have an exemption from Direction 1/21, it was reasonable for the employer to determine that it was not an appropriate use of public funds or in the public interest to continue paying an employee.11 Further to that, it has repeatedly been determined by the Commission that vaccine hesitancy does not constitute a reasonable excuse to not follow the lawful direction to be vaccinated. [61] I understand that I have not asked the parties for submissions regarding the suspension without pay decision, but I have enough material before me to establish that Ms Duck's appeal against the suspension without pay decision has very limited prospects of success. Conclusion and order [53] There is nothing in the material before me that establishes that Ms Duck has a satisfactory reason for the very significant delay in lodging her appeal. Further to that, I find that if I were to extend time to allow the lodging of the appeal, the appeal has very limited prospects of success. [54] For the forgoing reasons, I am not satisfied that the circumstances warrant the extension of time to allow the appeal to be heard. [55] The application for an extension of time to commence the appeal is refused. 10 Schimke v State of Queensland (Department of Education) [2022] QIRC 136, [39]. 11 For example, Thorley v State of Queensland (Department of Education) [2022] QIRC 133, [85]. -- 8 of 8 --