Carr v State of Queensland (Department of Education) [2022] QIRC 188

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Carr v State of Queensland (Department of Education) [2022] QIRC 188 PARTIES: Carr, Joshua (Appellant) v State of Queensland (Department of Education) (Respondent) CASE NO.: PSA/2022/388 PROCEEDING: Public Service Appeal - Appeal against decision about suspension without pay - Application for longer period to start appeal DELIVERED ON: 31 May 2022 HEARING DATE: MEMBER: On the papers Merrell DP DATES OF WRITTEN SUBMISSIONS: Appellant's written submissions filed on 19 April 2022 and on 26 May 2022 and Respondent's written submissions filed on 18 May 2022 ORDER: The Appellant's application for a longer period to start his appeal is refused. CATCHWORDS: PUBLIC SERVICE - EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY - PUBLIC SERVICE APPEAL - Appellant employed by the State of Queensland as a Senior Teacher in the Department of Education at the Maryborough State High School - 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 afforded the opportunity to show cause why he should not be suspended without pay - Appellant provided response - Appellant advised of decision to suspend him without pay - Appellant appealed -- 1 of 10 -- 2 against decision to suspend him without pay - Appellant started appeal 32 days outside of the 21 day limitation period - Appellant applied for a longer period to start his appeal - consideration of relevant matters in respect of whether or not the discretion to allow the Appellant a longer period to start his appeal should be exercised in the Appellant's favour - application refused LEGISLATION: Department of Education Employment Direction 1/21 - COVID-19 Vaccinations, cl 5 Directive 16/20: Suspension directive, cl 6.5 Industrial Relations Act 2016, s 564 Public Service Act 2008, s 137 CASES: Forsyth-Stewart v State of Queensland (Department of Education) [2021] QIRC 395 Forsyth-Stewart v State of Queensland (Department of Education) [2022] ICQ 12 Reasons for Decision Introduction [1] Mr Joshua Carr is employed by the State of Queensland, through the Department of Education ('the Department') as a Senior Teacher at the Maryborough State High School. [2] By virtue of cl 5 of the Department of Education Employment Direction 1/21 - COVID-19 Vaccinations ('the Direction'), Mr Carr was required to receive a first dose of a COVID-19 vaccine by 17 December 2021 and to provide evidence of such vaccination. [3] Mr Carr provided no such evidence. [4] By letter dated 10 January 2022 from Ms Genevieve Gillies-Day, Executive Director, People and Corporate Services of the Department, Mr Carr was advised that: • he was suspended with pay as from 20 January 2022; and • he had the opportunity to respond, no later than close of business on 17 January 2022, as to why he should not, pursuant to s 137(4) of the Public Service Act 2008 ('the PS Act') be suspended without pay. [5] By email sent on 16 January 2022, a response to Ms Gillies-Day's letter was provided by Mr Carr. -- 2 of 10 -- 3 [6] By letter dated 27 January 2022, Mr Rynell Hastie-Burroughs, Executive Director, Business Partnering and Engagement of the Department, advised Mr Carr that, as from 27 January 2022, he would be suspended from duty without pay ('the decision'). There is no dispute that, on 27 January 2022, Mr Carr received the decision by email. [7] By virtue of the combined effect of s 564(1) and s 564(3)(d) of the Industrial Relations Act 2016 ('the IR Act'), Mr Carr had to start his appeal on or before 17 February 2022. By appeal notice filed on 21 March 2022, Mr Carr appealed against the decision. As a consequence, Mr Carr started his appeal 32 days out of time. [8] In his appeal notice, Mr Carr acknowledged that he did not start his appeal within 21 days after he was given the decision and he applied for an extension of time in which to start his appeal. [9] This is my decision about Mr Carr's application to start his appeal within a longer period. [10] For the reasons that follow, Mr Carr's application for a longer period to start his appeal is refused. The relevant provisions of the Industrial Relations Act 2016 [11] Section 564(2) of the IR Act relevantly provides that on application made during or after the prescribed appeal period, the Commission may allow an appeal to be started within a longer period. [12] In Forsyth-Stewart v State of Queensland (Department of Education),1 I set out the approach that I considered should be taken in respect of the Commission's discretion to allow an appellant a longer period in which to start an appeal.2 I will not repeat, in these reasons, what I said in that case, however, I observe that in the appeal of that decision to the Industrial Court of Queensland, his Honour, Davis J, President, made no criticism of that approach.3 [13] I will consider Mr Carr's application for a longer period in which to start his appeal by adopting that same approach. Length of the delay [14] The length of the delay is 32 days. The Department submitted that such a delay is a significant delay. I agree. 1 [2021] QIRC 395 ('Forsyth-Stewart'). 2 Ibid [15]-[20]. 3 Forsyth-Stewart v State of Queensland (Department of Education) [2022] ICQ 12, [14]-[17] (Justice Davis, President). -- 3 of 10 -- 4 Mr Carr's explanation for the delay [15] In his principal submissions, Mr Carr submits that: • his written response to Ms Gillies-Day's letter dated 10 January 2022 '… was sent, via TPAQ4 (Red Union) on my behalf within the time frame' set out in Ms Gillies-Day's letter dated 10 January 2022; • in Ms Gillies-Day's letter dated 10 January 2022, there was no mention or indication that he had the right or ability to appeal any of the decisions that the Department was making; • nowhere in the decision did the Department inform him of his right to appeal the decision and it did not inform him of '… the timeframe around such a process'; • he had been in contact with the Department by email and registered post on 7 February 2022, 25 February 2022 and 18 March 2022, requesting the information that the Department claims to have used to make the decision and seeking answers to items that he believed had not been considered, and, to date, he had not received any answers from any representative of the Department; and • the Department contacted him on 18 March 2022 informing him that he had the right '… to appeal the decisions that had been made against me' and that that information had not been afforded to him prior to that date either by '… the Department or any other organization or person who was 'allowed' to be aware of my situation.' [16] Mr Carr concluded by submitting: 8) If the Department of Education believes that each employee should already be aware of the process available to appeal decisions in matters like this, then why did they find it necessary to remind me of other expectations and rights like the ability to respond within 7 days of the 10 th of January email or the Code of Conduct. 9) For these reasons, I am seeking from the Queensland Industrial Relations Commission an extension of time to make my appeal beyond the 21 days normally afforded employees. [17] The Department relevantly submits that: • Mr Carr has not provided any compelling reasons for any delay and has failed to provide an explanation for his failure to file his appeal within the 21 day limitation period despite the onus being on him to do so; • he was aware of the decision because, on 7 February 2022, he emailed the Department seeking further and better particulars of the decision to suspend him without pay at which point it would have been open to him to file an appeal against the decision; 4 Which I understand is the acronym for Teachers' Professional Association of Queensland. -- 4 of 10 -- 5 • at that time, Mr Carr was seeking the support and advice of a company called 'Red Union Support'; • on 16 February 2022, one day prior to the appeal period expiring, he sent to the Department, on 'The Red Union' letterhead, a letter refuting the proposed disciplinary action to be taken, arguing why he had not been afforded workplace rights and requesting consultation regarding the risk of COVID-19 vaccination; and • because Mr Carr was accessing the support of a representative, being the company 'Red Union Support', to seek advice about the decision, he had the capacity to investigate his options with regard to appealing the decision which is a relevant factor weighing against the Commission extending time. [18] I am not persuaded that Mr Carr has provided an acceptable explanation for the delay in starting his appeal. [19] Mr Carr's principal explanation for not starting his appeal within the limitation period is that the Department did not advise him of his right to appeal or the time limits until after the expiration of the limitation period. [20] The bare fact that the Department, in the decision, did not advise Mr Carr of any appeal right and the relevant time limit to appeal does not lead to a conclusion that Mr Carr has provided an acceptable explanation for his delay. All relevant circumstances must be considered. [21] In my opinion, there are circumstances that are relevant as to whether or not Mr Carr has provided an acceptable explanation for his delay. [22] First, in the last paragraph of the decision, Mr Hastie-Burroughs invited Mr Carr to contact the Department's COVID Compliance Team should he have any queries in relation to the content of his letter. Mr Carr was provided with a contact telephone number and a contact email address. There is no evidence that Mr Carr engaged in such contact with that team, in a timely manner, after his receipt of the decision, to seek any advice about his appeal rights. For reasons which I give below, Mr Carr decided to seek advice, in relation to the decision, from an external source and Mr Carr obtained advice from that external source about challenging the decision. [23] I acknowledge that Mr Carr did contact various representatives of the Department after his receipt of the decision. [24] Mr Carr sent to the Director-General of the Department, to Ms Gillies-Day, to Mr Hastie-Burroughs and to the Human Resources Manager of the Maryborough office of the Department, a document dated 7 February 2022 and headed 'NOTICE FOR FURTHER AND BETTER PARTICULARS' seeking, amongst other information, information in relation to the decision to suspend him without pay. Mr Carr also emailed that document on 7 February 2022 to various departmental email addresses, including that of the Department's COVID Compliance Team. -- 5 of 10 -- 6 [25] Mr Carr sent, to the same persons, a document dated 25 February 2022 and headed 'NOTICE TO REMEDY', in which, amongst other things, he again demanded information in relation to the decision to suspend him without pay. Mr Carr also emailed that document on 25 February 2022 to various departmental email addresses, including that of the Department's COVID Compliance Team. [26] Mr Carr sent, to the same persons, a document dated 18 March 2022 and headed 'NOTICE OF BREACH' in which he again, amongst other things, demanded information in relation to the decision to suspend him without pay. Mr Carr also emailed that document on 18 March 2022 to various departmental email addresses, including that of the Department's COVID Compliance Team. [27] I cannot see in any of those documents where Mr Carr sought advice or information about any ability he had to appeal the decision. [28] Secondly, as referred to by the Department, it appears to me, having regard to Mr Carr's submissions, that soon after his receipt of Ms Gillies-Day's letter dated 10 January 2022 inviting him to respond as to why he should not be suspended without pay, Mr Carr was being advised by a representative, namely, the TPAQ or the Red Union. I draw this conclusion because in his written submissions, Mr Carr stated that a response was provided to the Department, as to why he should not be suspended without pay, '… via TPAQ (Red Union).' [29] In addition, in the document dated 25 February 2022 that he sent to a number of departmental employees (referred to in paragraph [25] above), Mr Carr stated, amongst other things, that he attached another copy of the '… Red Union email that I sent on 16th of February.' [30] A document annexed to the Department's submissions is an email to Ms Gillies-Day, dated 16 February 2022, under the letterhead of 'Red Union Support'. In that email, which is written in the first person by Mr Carr, he relevantly states: For the avoidance of doubt, I write to you in good faith and apologise for the templated format of this letter. In particular, I write to you regarding the recent decision to suspend me for over 5 months (until 30 th June 2022). I continue to refute any allegations that I am liable to discipline under a disciplinary law, or any finding of serious misconduct under s 121(2) of the Industrial Relations Act 2016 (Qld). I kindly request that you reconsider suspending me without pay for such a lengthy period of time, and insist that you afford me the opportunity to engage with me with respect to the below. Given the extraordinary threat, I urge restraint, to stop the rushed process from destroying my vocation and ability to make a living while I exercise my workplace rights. In the absence of constructive evidence to suggest conduct relevant for a finding of disciple [sic], I have engaged a representative to further assist me in asserting my workplace right to consultation and to raise an industrial dispute under the EBA (amongst other rights). INFORMATION TO THE EMPLOYER REGARDING WORKPLACE RIGHTS (Queensland Education Employee who previously sought consultation through Red Union) 1. Supportah Australia Pty Limited t/a IR Claims acts for Red Union Support Hub, the following trade union / industrial association, including their respective members -- 6 of 10 -- 7 who have advised you directly of same, and as part of their membership below to protect and advance their industrial interests: a. Teachers Professional Association of Queensland (TPAQ); b. Teachers Professional Association of Australia (TPAA). 2. This generic correspondence is regrettable, but is unavoidable given the time frames and volume of members impacted.5 [31] In Mr Carr's letter dated 25 February 2022, he also stated: I have also had no contact from you, or the Department of Education (Queensland), regarding the email that I sent on the 16 th February 2022, that was compiled by Red Union, of which I am a paying member. [32] The conclusion I draw from this material is that at a time prior to the expiration of the time limit for Mr Carr to start his appeal against the decision (17 February 2022), he was being advised by the Red Union of which he was a member. [33] It seems to me that as Mr Carr had obtained representation in respect of his rights, he had the ability to seek advice about his right to challenge the decision. [34] Thirdly, in the email dated 16 February 2022 under the letterhead of 'Red Union Support' referred to above, express reference was made to cl 6.5 of the Directive 16/20: Suspension directive. That clause provides that a public service employee may appeal a decision, to suspend the employee without normal remuneration, to this Commission. In this regard, the email stated: c. 6.5 Why has the Department not afforded me the opportunity to formally appeal the decision to suspend me without remuneration with the Queensland Industrial Relations Commission ('QIRC'). [35] From that part of the email, it seems obvious that at a point in time prior to the expiration of the time limit to start his appeal against the decision, Mr Carr had received advice from the Red Union that he had a right of appeal against the decision to suspend him without remuneration to this Commission. [36] For all these reasons, I am not persuaded that merely because the Department, in the decision, did not expressly advise Mr Carr of his appeal rights and any relevant limitation period, that fact, on its own, amounts to an acceptable explanation by Mr Carr for a 32 day delay in starting his appeal against the decision. [37] I find that prior to the expiration of the time limit to appeal against the decision to suspend him without remuneration, Mr Carr had taken steps to obtain advice, external to the Department, about the means by which he could challenge the decision. [38] I further find that before the expiration of the limitation period, Mr Carr received advice that he had the right to appeal the decision to this Commission. This is because of the reference in the email dated 16 February 2022 (under the letterhead of 'Red Union Support') to cl 6.5 of Directive 16/20: Suspension directive and the direct reference in that email to the right to appeal the decision to this Commission. That email was sent one day before the expiration of the time limit to appeal. 5 My emphasis. -- 7 of 10 -- 8 [39] I accept that action taken by an 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.6 [40] As referred to earlier in these reasons, Mr Carr, on 7 February 2022 and on 16 February 2022 (under the letter head of 'Red Union Support'), did email the Department after his receipt of the decision. [41] By the email sent on 7 February 2022, Mr Carr sought: • the information upon which the decision was made to direct him to be vaccinated; • an explanation of why such a direction to be vaccinated was reasonable; • an explanation of why he could not teach his students by the use of technology; and • details as to why it was said in the decision that the Department had engaged and consulted with him over the requirement for him to comply with the Direction. [42] In the email sent on 16 February 2022, Mr Carr challenged the decision on various grounds. [43] However, the email sent on 7 February 2022 was compiled by the Red Union of which Mr Carr was a paying member. Further, the email sent on 16 February 2022 was a Red Union email. From these facts, I infer that Mr Carr made the decision to challenge the decision by the means of sending those emails as advised by the Red Union. The means of such challenge did not involve an appeal to this Commission. [44] In his submissions in response filed on 26 May 2022, Mr Carr submitted: 3) The Respondents claim in paragraph 8 suggests that any person/s or group/s that I was seeking support from also knew about the right that I had to appeal the decision. If these people or groups were also unaware of the right of appeal, then how does this make it now irrelevant that I am seeking the appeal outside of the time normally afforded? [45] By this submission, Mr Carr seems to contend that there was error on the part of the Red Union in that it did not know of his right to appeal to this Commission against the decision to suspend him without remuneration. [46] For the reasons given immediately above, I cannot accept such a submission. In the email dated 16 February 2022 (under the letterhead of 'Red Union Support'), being an email which Mr Carr stated was compiled by the Red Union, express reference was made to cl 6.5 of Directive 16/20: Suspension directive. That clause refers to the right of a public service employee to appeal to this Commission against a decision to suspend the employee without normal remuneration. [47] To the extent Mr Carr seems to submit that his failure to start his appeal within the limitation period was as a result of the Red Union's error, I cannot accept that there was 6 Forsyth-Stewart (n 1), [19]. -- 8 of 10 -- 9 any such error. From the above-mentioned facts, the logical conclusion is that Mr Carr was advised by the Red Union of a particular course in challenging the decision to suspend him without remuneration. That involved sending the emails of 7 February 2022, 16 February 2022, 25 February 2022 and 18 March 2022. That particular course did not involve appealing the decision to this Commission. The Red Union was aware of that right prior to the expiration of the limitation period. [48] For all these reasons, I am not persuaded that Mr Carr has provided an acceptable explanation for his delay. Prejudice [49] The prejudice to Mr Carr is obvious in that he would be prevented from appealing the decision to suspend him without pay. [50] The Department submits that the delay itself gives rise to a general presumption of prejudice to it. Conduct of the Department [51] It might be desirable for a Department to inform an employee, who has been suspended without remuneration, of their right to appeal such a decision and the time limit to start such an appeal. As outlined above, Mr Carr points to the conduct of the Department in not advising him of his right to appeal against the decision and the timeframe for such an appeal until after the expiration of the limitation period. [52] However, there is no suggestion that the failure by the Department to advise Mr Carr of his appeal rights before the expiration of the limitation period was deliberate. As referred to above, Mr Carr was given the phone number and email address of the Department's COVID Compliance Team if he had any queries in relation to the content of the letter containing the decision. [53] The Department made no submissions about this consideration. Merits of the proposed appeal [54] The Department made extensive submissions as to why the decision was fair and reasonable and that, as a consequence, Mr Carr's prospects of success on appeal are low. [55] However, having regard to the Department's submissions about Mr Carr's prospects of success on appeal, I presently cannot form the view that Mr Carr's prospects are non-existent or so low that such a consideration should weigh heavily against allowing him to start his appeal within a longer period. Considerations of fairness as between the appellant and other persons in a like position [56] Neither party addressed this issue. -- 9 of 10 -- 10 Mr Carr should not be allowed a longer period to start his appeal [57] In exercising discretion under s 564(2) of the IR Act, the fundamental objective is to do justice as between the parties. [58] In my view, this is not a case where justice requires that Mr Carr be given a longer period of time in which to start his appeal. [59] For the reasons I have given, Mr Carr has not given an acceptable explanation for his delay. Indeed, by sole reference to the email sent to the Department on 16 February 2022, Mr Carr, before the expiration of the time limit to start his appeal, knew of his ability to appeal against the decision to this Commission. [60] Further, Mr Carr had engaged representation in relation to the decision to suspend him without remuneration. From the correspondence Mr Carr sent to the Department after the decision to suspend him without pay, it seems clear that he adopted the advice he was given by his representative in relation to challenging the decision. That advice did not include appealing the decision to this Commission. [61] Mr Carr's explanation for his delay, being that the Department did not advise him of his right to appeal and any relevant time limit, having regard to the above facts, does not give rise to Mr Carr having an acceptable explanation for his delay. In addition, the evidence is that Mr Carr's advisor, the Red Union, knew of his right to appeal prior to the expiration of the limitation period and therefore there was no error on the part of the Red Union as contended by Mr Carr. [62] Furthermore, a delay of 32 days is a significant delay. [63] While there will be prejudice to Mr Carr, in that he cannot pursue his appeal against the decision to suspend him without pay, weighing that consideration against the more significant considerations of his failure to provide an acceptable explanation for his delay and the significant length of the delay, my view is that, in these circumstances, justice does not compel an indulgence being granted to Mr Carr to allow him to start his appeal within a longer period. Conclusion [64] For the reasons I have given, I refuse Mr Carr's application for a longer period to start his appeal. Order [65] I make the following order: The Appellant's application for a longer period to start his appeal is refused. -- 10 of 10 --