Allison v State of Queensland (Department of Education) [2022] QIRC 152

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Allison v State of Queensland (Department of Education) [2022] QIRC 152 PARTIES: Allison, Julie (Appellant) v State of Queensland (Department of Education) (Respondent) CASE NO: PSA/2022/399 PROCEEDING: Public Service Appeal – appeal against a suspension decision - application for longer period of time to file appeal DELIVERED ON: 13 April 2022 MEMBER: HEARD AT: Pidgeon IC On the papers ORDER: The Appellant's application to allow their appeal to be started within a longer period is refused. CATCHWORDS: PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – public service appeal - 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 filed out of time - whether it is in the interests of justice to allow the appeal to be started in a longer period. -- 1 of 6 -- 2 LEGISLATION: Industrial Relations Act 2016, ss 562, 564 Public Service Act 2008 (Qld) s 194 Direction 1/21 - COVID-19 Vaccinations Reasons for Decision (ex tempore) Introduction [1] Ms Allison is a senior teacher at Coomera State School. On 16 December 2021, Direction 1/21 - COVID-19 Vaccinations (the Directive) was issued by the Director General, requiring employees in high risk settings to be vaccinated against COVID-19. Schools were identified as high risk settings and therefore, Ms Allison was a person to whom the directive applied. [2] Ms Allison has not shown evidence of having received the prescribed number of COVID- 19 vaccines and on 10 January 2022, she was advised she was being suspended without pay under s 137(1)(b) of the Public Service Act 2008 (the PS Act). Ms Allison was invited to show cause why she should not be suspended without pay. For purposes of this decision, it’s important to note that that notice was sent to and received by Ms Allison at her departmental email address. [3] On 17 January 2022, Ms Allison responded to the show cause letter from that same departmental email address. Eventually, as will be discussed shortly in these reasons, Ms Allison was suspended without pay. [4] Ms Allison filed an appeal against a suspension without pay decision with the industrial registry on 30 March 2022. The appeal notice did not have a suspension without pay decision attached to it and so I held a mention of the matter on 31 March 2022. At this hearing, or at this mention, there was some discussion about the decision and Ms Allison claimed to have not received the written decision. Ms Allison says it was only on 22 March 2022 that she was informed by the Department that she may appeal the suspension without pay decision. [5] Ms Allison’s appeal cannot be heard unless I determine to exercise my discretion to extend time under s 564 of the Industrial Relations Act 2016 (the IR Act). The power under s 564 is discretionary. In determining whether to exercise the power, I need to take -- 2 of 6 -- 3 into account the information and material available to me and decide whether it’s in the interest of justice to allow Ms Allison’s appeal to be heard out of time. [6] I’ve been assisted by the submissions I requested from the parties explaining the circumstances surrounding the correspondence, the delay in filing, potential prejudice to the parties and a number of contemporaneous documents that have been provided by Ms Allison. I’ve given consideration to all of those things, although I don’t intend to mention all of them here. [7] The Department contends that the decision was emailed to Ms Allison on 27 January 2022. The Department says that Ms Allison had been corresponding with the Department via her school email address both prior to and after 27 January and that there’s no reason to conclude that Ms Allison was not receiving emails, including the email of 27 January at the departmental email address. Importantly, the Department have attached an extract from the Department email tracking system. The extract indicates that the email was received by Ms Allison’s email address, or email inbox, at 5.28 pm on Thursday, 27 January 2022. The column of the report marked “status” says that the email was, in inverted commas, my inverted commas, “not opened”. The Department says that the fact Ms Allison chose not to open the email is not something for which the Department can be held responsible. [8] Ms Allison responds to the Department’s submissions to say that she has opened all Departmental emails that have come to her departmental email account and her later interactions with the Department prove she was awaiting official written notification. [9] I’ll deal with the matter of receipt of that correspondence first. I agree with the Department that there’s no reason to believe that an email sent by the Department to Ms Allison to her work email address would not have been received at that inbox. Apart from the entry the Department says is from the email system report generated by the Department and attached to its submissions, further evidence of this is the extensive amount of email communication that appears to have been exchanged between various Department email addresses and Ms Allison throughout January and February; however, we also have Ms Allison, who appears to be actively sending and receiving correspondence with regard to the vaccine mandate and the suspension, claiming that she never received the email. [10] While I accept the email was received by Ms Allison’s active and functioning departmental email inbox, it’s impossible for me to know what really happened. Why was it unopened? Was it an oversight? Was it deleted in error? Technology is certainly not in my wheelhouse. Ms Allison was participating in a show cause process and had -- 3 of 6 -- 4 reason to be aware that a decision on her suspension without pay was pending. I imagine she was looking out for it. I accept that it was sent by the Department on the day they say it was and I accept that for whatever reason, it remained unopened. If this was the date of the decision, the appeal has been filed some five weeks out of time; however, I cannot be sure of the reason why the email remained unopened and why Ms Allison would maintain for so long to have not received it. [11] So for the purposes of this decision, I’m going to use the date of decision as the date Ms Allison says she spoke to someone at the Department and became aware that a decision had been made to suspend her without pay. That was on Wednesday, 9 February 2022 and occurred around the time her pay ceased. [12] This means the appeal was filed some four weeks out of time. I note that Ms Allison says that the 21 day timeframe for filing an appeal should commence on 22 March, the day she says the Department informed her she could appeal. I don’t accept that. The 21 days commences when the employee is informed of the decision, not when the employee or appellant receives advice about their appeal rights, either from their own research, their employer, or elsewhere. So I’m taking the date of decision as 9 February 2022. [13] On 9 February 2022, Ms Allison wrote an email to the email address [email protected]. In that email, she sets out the events that led to her becoming aware of the decision. In part, that email reads: Hi guys, just updating you. Not sure what to do next but today, having noticed that my payslip didn’t come and neither did the pay, after ringing your info line and following Jackson’s suggestions, I made some inquiries. I firstly rang the payroll office and was referred to the COVID compliance team. Payroll had no information and could tell me nothing. I then rang the COVID compliance team. The woman I spoke to was very helpful. She then informed me that I was suspended without pay and the date 24 – January 24 was mentioned. I inquired as to why I’d not received any communication regarding this change in status, paid to unpaid. She said it was because the system was overwhelmed and that I should receive notice in the coming weeks. I’ve had no communication from the COVID compliance team since the letters sent by you and me as a response to the show cause letter by January – on January 17. I was sent an acknowledgement from them that these letters were received. [14] The email goes on and ends with: 'please get back to me with what action should be taken from this point'. [15] That email confirms to me that Ms Allison was aware of the suspension without pay decision. This is in part because her pay had stopped but also because the Department -- 4 of 6 -- 5 had informed her verbally. At this point, it would’ve been open to Ms Allison to file an appeal against that decision. [16] On 16 February 2022, a week after – about a week after she was made aware of the decision and sought advice about it, Ms Allison sent an email to the COVID compliance team, cc’d to [email protected]. This email, marked urgent and private and confidential, is addressed to Ms Gillies-Day. It commences with the words: 'I am writing to you regarding your decision to suspend me without pay'. [17] This is further evidence that Ms Allison was aware of the decision. The email commences with a complaint that Ms Allison has not received communication regarding the decision to suspend her without pay. Ms Allison goes on to say, in part: The Industrial Relations Commission are going to be very interested in your mismanagement of my case. As your Department is aware, I am the carer for my adult intellectually impaired son and no communication has placed us in a precarious position financially. This lack of communication has been at all levels of the Education Department. Total failure to answer any of my concerns since the announcement of the mandate has put me and my dependent family at risk. [18] That email indicates to me that Ms Allison was aware of the Queensland Industrial Relations Commission and that the suspension without pay was something she was able to bring to the Commission’s attention. It appears that attached to the email to Ms Gillies- Day was correspondence on a letterhead carrying the name and logo of a company called Red Union Support. That letter apologises for the templated form of the letter. The letter goes on to say: 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. [19] The letter goes on to a section entitled Information to the Employer Regarding Workplace Rights. In brackets under that heading, it says: 'Queensland Education employee who previously sought consultation through Red Union'. [20] Underneath this are what appear to be five appeal points regarding the decision to suspend without pay. The letter concludes with the following: 'Please urgently confirm that I may access some form of remuneration while I exercise my rights or until the dispute resolution process under the EBA is exhausted'. [21] That letter and the other correspondence I refer to above tells me three things. The first is that Ms Allison knew about the decision to suspend her without pay and knew the date that the suspension would remain in place until. The second is that Ms Allison understood that the QIRC was a place she could bring a complaint about the suspension -- 5 of 6 -- 6 without pay. The third is that Ms Allison was accessing the support of a representative, the company Red Union Support, to seek advice about the suspension without pay. Ms Allison had the capacity to investigate her options with regard to appealing the decision. [22] Ms Allison filed the appeal on 30 March without a written decision attached to it and noted that she did not have a written decision to attach to it. Essentially, that’s what prompted me to hold the mention and request the written decision. This option would have also been available to Ms Allison back at 10 February 2022 or even on 16 February 2022 when she wrote the letter to Ms Gillies-Day. [23] Ms Allison was seeking the support and advice of the company called Red Union Support. She spoke with someone from that company and was corresponding with them. Indeed, she appears to have been provided with some pre-prepared communication which could be amended for her to include her name and other information specific to her. [24] In circumstances where Ms Allison is a person who was aware that the suspension without pay show cause process was happening, became aware that a decision to suspend her without pay had been made, clearly understood that the QIRC has jurisdiction to hear such matters and sought advice which led to her to write to Ms Gillies-Day seeking to have the decision set aside and in the end filed her appeal without a decision attached but with a note informing the Commission that she didn’t have a written decision, an action she could have taken within the 21 day statutory timeframe, I am unable to find that it is in the interests of justice to extend the statutory timeframe for filing the appeal. The application for an extension of time is dismissed. Public service appeal 2022, number 399, will not be heard by the Commission. -- 6 of 6 --