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  4. Thorley v State of Queensland (Department of Education) - [2022] QIRC 133

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Thorley v State of Queensland (Department of Education)[2022] QIRC 133

Thorley v State of Queensland (Department of Education)[2022] QIRC 133

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Thorley v State of Queensland (Department of Education) [2022] QIRC 133

PARTIES: 

Thorley, Reanna

(Applicant)

v

State of Queensland (Department of Education)

(Respondent)

CASE NO:

PSA/2022/332

PROCEEDING:

Appeal against a suspension without pay decision

DELIVERED ON:

6 April 2022

HEARING DATE:

5 April 2022

MEMBER:

Pidgeon IC

HEARD AT:

Brisbane

ORDER:

The decision appealed against is confirmed

CATCHWORDS:

PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – PUBLIC SERVICE APPEAL – appeal against suspension without pay – where the appellant did not comply with Department of Education Employment Direction 1/21 – COVID-19 Vaccinations – where the appellant was suspended with pay – where the appellant did not apply for a medical exemption – where appellant was suspended without pay – whether the decision to suspend without pay was fair and reasonable

LEGISLATION AND

INSTRUMENTS:

Industrial Relations Act 2016, ss 562B, 566(1)

Public Service Act 2008, ss 137, 194, 196, 197

CASES:

Brassell-Dellow & Ors v State of Queensland (Queensland Police Service) & Ors [2021] QIRC 356

Higgins v State of Queensland (Queensland Police Service) [2022] QIRC 030

Slykerman v State of Queensland (Queensland Health) [2022] QIRC 039

Tilley v State of Queensland (Queensland Health) [2022] QIRC 002

APPEARANCES:

Ms Kerr acting as agent for the Appellant.

Ms Creighton for the Respondent

Reasons for Decision

  1. [1]
    Ms Reanna Thorley is a teacher at Tallebudgera State School.  She commenced employment with the Department of Education (the Department) on 25 July 2005 and has worked in her current school since 23 January 2014.
  2. [2]
    On 16 December 2021, via Department of Education Employment Direction 1/21 – COVID-19 Vaccinations (Direction 1/21), the Department directed Ms Thorley to be vaccinated against COVID-19.  Ms Thorley did not comply with Direction 1/21.  Ms Thorley was initially suspended with pay and following a show cause process, on 17 February 2022, Ms Rynell Hastie-Burroughs, Executive Director, Business Partnering and Engagement, Department of Education informed Ms Thorley that she would be suspended without pay.
  3. [3]
    Ms Thorley appeals the suspension without pay decision.
  4. [4]
    Ms Thorley filed her appeal against the decision on 1 March 2022, within 21 days of the decision.  I am satisfied that Ms Thorley is a person who can appeal,[1] is appealing an appealable decision[2] and has filed her appeal within time.[3]

The Direction and the Suspension

Direction 1/21

  1. [5]
    On 16 December 2021, the Director-General, Department of Education, issued the Direction 1/21.[4]  Clause 2 of the Directive is unequivocal and states 'Compliance with this direction is mandatory'.
  2. [6]
    The purpose of Direction 1/12 is set out at cl 3.
  1.  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.

  1. [7]
    It is clear from both cl 3 and the definition of high risk setting provided in Direction 1/21 that a school is a 'high risk setting' for the purposes of Direction 1/21.
  2. [8]
    Clause 5 of Direction 1/21 sets out the COVID-19 vaccination requirements for Department of Education workers whose role requires any attendance in a high risk setting. Clause 5(d) requires that '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…'.  Clause 6 lists acceptable evidence of a COVID-19 vaccine and says that 'evidence of vaccination is to be provided to the Department of Education through the Department of Education COVID-19 Vaccination Declaration survey.
  3. [9]
    Clause 8 provides information regarding application for exemption due to medical contraindication or participation in a clinical trial.
  4. [10]
    Clause 9 of Direction 1/21 provides that from 17 December 2021: 'unvaccinated workers without a qualifying exemption must not enter a high-risk setting unless there is an emergency or permission is granted in accordance with…' cls 26 and 27 of the Chief Health Officer's COVID-19 Vaccination Requirements for Workers in a high-risk setting Direction.
  5. [11]
    Ms Thorley is a person covered by Direction 1/21.
  6. [12]
    The Department submits that the authority to direct employees to be vaccinated against COVID-19 arises under ss 11 and 98 of the Public Service Act 2008 (PS Act) and the common law.  Further, the Department and the Director-General have obligations under the Work Health and Safety Act 2011 (WHS Act) and the Work Health and Safety Regulation 2011 to ensure the health and safety of workers, so far as is reasonably practicable.
  7. [13]
    To avoid any confusion, I am approaching this appeal on the basis that Direction 1/21 is lawful and reasonable.  The Chief Health Officer is the most senior medical officer in the state and made the Direction regarding workers in high-risk settings which took effect on 11 December 2021.  Once that Direction was made and identified various relevant education settings as 'high risk settings', it was reasonable for the Department to determine to implement Direction 1/21 to ensure that it was both complying with the Chief Health Officer Direction and meeting its duty of care to staff, students and other members of school communities.

Suspension Directive 16/20 and s 137 of the PS Act

  1. [14]
    Clause 5 of the of the suspension Directive sets out suspension considerations and references s 137 of the PS Act which provides that the chief executive of a department may, by notice, suspend a person from duty if the chief executive reasonably believes that a public service employee is liable to discipline under a disciplinary law.  Section 137(3) requires the chief executive to consider all reasonable alternatives before suspending an employee.   Where the employer determines that the employee could not undertake alternative options, the employee needs to be provided with a reason why the employee could not undertake alternative options.
  2. [15]
    Clause 6 of the Directive deals with suspension without remuneration.  Clause 6.3 states

In deciding that normal remuneration is not appropriate, the factors the chief executive is to consider include:

  1. (a)
    the nature of the discipline matter
  2. (b)
    any factors not within the control of the agency that are preventing the timely conclusion of the discipline process
  3. (c)
    the public interest of the employee remaining on suspension with remuneration.
  1. [16]
    Clause 6.4 states that a decision to suspend an employee without remuneration is subject to the principles of natural justice. 

Suspension with Pay

  1. [17]
    On 10 January 2022, Ms Genevieve Gillies-Day, Executive Director, People and Corporate Services, Department of Education, wrote to Ms Thorley to inform her that due to her failure to provide evidence of being vaccinated against COVID-19, she was not lawfully able to attend the workplace to carry out and perform the functions of her role.  Ms Thorley was informed that she was suspended on normal remuneration as Ms Gillies-Day reasonably believed Ms Thorley was liable to discipline under a disciplinary law pursuant to s 137(1)(b) of the PS Act.[5]
  2. [18]
    That letter also informed Ms Thorley that consideration was being given to suspending her without pay.  Ms Thorley was given seven days (until 17 January 2022) to respond as to why she should not be suspended without pay.

Ms Thorley's response to the show cause notice regarding suspension without pay

  1. [19]
    It appears that Ms Thorley responded to the show cause notice in the form of several pieces of correspondence.  I do not intend to reproduce the contents of these letters here, but I have read each of the pieces of correspondence:
  • Letter to Ms Gillies-Day, RE: YOUR EMAIL DATED 10 JANUARY 2022 – SUSPENSION FROM DUTY, 17 January 2022.
  • Letter to Ms Gillies-Day, Response to Suspension due 17 January 2022 from Red Union Support, 17 January 2022.
  • Letter to Ms Gillies-Day, Response to Suspension due 17 January 2022 from Red Union Support, 17 January 2022. (This letter appears to be about Teacher Aides).
  • Letter to Ms Gillies-Day, Response to Suspension due 17 January 2022 from Red Union Support, 17 January 2022. (This letter also appears to be about Teacher Aides)
  • Letter to Ms Gillies-Day, Response to Suspension due 17 January 2022 from Red Union Support, 17 January 2022 (This letter appears to be about School Cleaners).
  • Letter to Ms Gillies-Day 'NOTICE OF RESPONSE TO NOTICE OF SUSPENSION' (which purports to be a legal contract), 25 January 2022.
  1. [20]
    I note that in the first letter, Ms Thorley confirms that she is not giving free and informed consent to the vaccine. 
  2. [21]
    The letters from the Red Union are form letters and do not address Ms Thorley's individual circumstances regarding the show cause process. In summary, the letters raise concerns about the safety and efficacy of the vaccines; request consultation about Direction 1/21 and request that the disciplinary proceedings not continue until consultation has occurred.
  3. [22]
    The final letter, provided eight days after the date Ms Thorley had been required to show cause regarding the proposed suspension without pay appears to repeat Ms Thorley's requests for more information about the vaccines, further questions the lawfulness of Direction 1/21 and makes various demands of the Respondent.

Suspension without pay decision

  1. [23]
    On 17 February 2022, Ms Hastie-Burroughs wrote to Ms Thorley to inform her that a decision had been made to suspend her without pay. The letter stated, in part

Accordingly, my decision is that it is not appropriate for you to receive normal pay during your suspension and that you are suspended from duty without pay. Your suspension without pay will take effect immediately from the date of this letter and, at this stage, will remain in place until 30 June 2022, or until otherwise advised.

My reasons for this decision are as follows:

  1. (a)
    The Direction has been adopted state-wide for the protection of vulnerable persons and where a sudden reduction in available workforce would significantly affect the continuity of education services (among others). Unless an individual has a diagnosed medical contraindication or other qualifying exceptional circumstance the Direction is a reasonable one.
  2. (b)
    The information available to me indicates that you may have failed to comply with the Direction, and the length of time it may take you to comply with the Direction is outside of the department's control.
  3. (c)
    I have previously considered all reasonable alternatives, including alternative duties or adjustments and remain of the view that there is no reasonable alternative role or reasonable adjustments available which appropriately manage the risk that arises due to your non-compliance.
  4. (d)
    You have had sufficient time to engage with the requirements of the Direction. The department has engaged with you on a number of occasions about what was required of you to comply with the Direction.
  5. (e)
    I am not in receipt of any material, through your response to me, the Department's vaccination status survey or otherwise, that you have been vaccinated. Nor am I in receipt of information that you have applied for or received an approved exemption due to medical contraindication or exceptional circumstances.
  6. (f)
    Given your failure to comply with the Direction, the time you have had to engage with and comply with the Direction, the engagement and consultation undertaken by the department, the nature of the discipline to which you may be liable and the time it may take to conclude the disciplinary process, I have determined it is not a responsible and appropriate use of public funds to allow you to continue to be paid while this process is underway.

….

  1. [24]
    The Respondent says that the suspension without pay was fair and reasonable.

Appeal Principles

  1. [25]
    Section 562B(3) of the Industrial Relations Act 2016 (IR Act) provides that the appeal is to be decided by reviewing the decision appealed against and that "the purpose of the appeal is to decide whether the decision appealed against was fair and reasonable".
  1. [26]
    In deciding this appeal, s 562C(1) of the Industrial Relations Act 2016 (IR Act) provides that the Commission may:
  1. (a)
    confirm the decision appealed against; or

…

  1. (c)
    For another appeal-set the decision aside, and substitute another decision or return the matter to the decision maker with a copy of the decision on appeal and any directions considered appropriate.
  1. [27]
    A public service appeal is not an opportunity for a fresh hearing, but a review of the decision arrived at by the decision maker. My task in deciding this appeal is to review the decision received 17 February 2022 and decide whether that decision was fair and reasonable.
  1. [28]
    Findings made by the Department which are reasonably open to it based on the relevant materials or evidence should not be expected to be disturbed on appeal.

Ms Thorley's Appeal

  1. [29]
    Ms Thorley's reasons for appeal were set out in an attachment to her appeal notice.  The reasons Ms Thorley says the decision was not fair or reasonable can be summarised as:
    1. Improper implementation of Direction 1/21 and/or the Decision as is required under the Department of Education State School Teachers' Certified Agreement 2019 (which she says is her contract).
  1. There has been no consultation or consideration by the Department of Ms Thorley's personal situation and/or her 16 years of service to the Department.
  1. Ms Thorley claims that the Department's instruction to follow Directive 1/21 is unlawful in its context given Ms Thorley's particular circumstances.
  1. The Department has made an unjustifiable incursion on Ms Thorley's human rights.
  1. The Department's coercion of Ms Thorley to have the vaccine with the threat of no pay and of termination is unlawful and has caused Ms Thorley mental torture.
  1. The conditions of the Decision are reprehensible and overly harsh.
  1. [30]
    Ms Thorley says that if the Department wants to follow the Department of Health's Directive, which I assume is the Chief Health Officer's COVID-19 Vaccination Requirements for Workers in a high-risk setting Direction, they need to offer a payout to those who cannot comply, not discipline them for asserting their rights under their contract and under the Human Rights Act 2019.
  2. [31]
    Ms Thorley goes on to say that the vaccine does not stop the spread of COVID-19 and that 'the Pfizer CEO has admitted that the current vaccines are all but useless in a couple of months if at all against the current variant of Omicron'.
  3. [32]
    Ms Thorley says:

First and foremost I claim the right to performance under my contract. If I no longer fit the required conditions of my employment due to the fact that the conditions have changed then I need to receive a payout with dignity and recognition that I have worked 16 years and a family to support and a mortgage.

  1. [33]
    I want to be very clear that the decision subject of this appeal is the decision to suspend Ms Thorley without pay.  Therefore, other than the request that I find the decision to suspend her without pay was not fair and reasonable, all other declarations and orders Ms Thorley seeks on page 10 of her submissions dated 16 March 2022 are not available to her via this public service appeal.

Submissions of the parties and consideration of submissions

  1. [34]
    Both Ms Thorley and the Department have filed extensive submissions and attachments.  On 5 April 2022, an oral hearing was held at Ms Thorley's request.  The purpose of the hearing was to enable Ms Thorley's representative to highlight submissions and expand on these.
  2. [35]
    I have determined to group submissions under relevant headings.  I have read all materials filed and listened attentively throughout the oral hearing of the matter even if I don't mention specific matters in this decision.
  3. [36]
    A number of matters addressed by Ms Thorley in her submissions and by her representative Ms Kerr at the hearing address matters which I would describe as informing context and background but not within the scope of the appeal before me.  

Ms Thorley's research and requests for further information

  1. [37]
    Ms Thorley's says that the Department has not produced 'scientific proof' to support the assertion that a primary school is a 'high risk setting'. Ms Thorley's submissions outline some of her own research about the efficacy of the vaccines and the impact of COVID-19 on children. 
  2. [38]
    The depth of Ms Thorley's concern about the vaccine is set out at page three of her submissions of 16 March 2022:

The Vaccine can cause death and therefore should not be mandatory. Side-effects include deaths and increased myocarditis and auto-immune problems are being attributed to the Cov-19 vaccines. It is evident through a search of databases and admissions from the Therapeutic Goods Association that the vaccine can and has caused death.  So far there are 114,183 reported injuries and 792 reported deaths in Australia.  The TGA has admitted that there has been vaccinations connected with death. I believe I am therefore being subjected to a 'Russian Roulette' medical procedure. One in which I could die no matter how small the odds. (footnotes omitted)

  1. [39]
    Further, at page 4 of Ms Thorley's submissions she says:

After researching the side effects of the vaccines I now have 'a morbid fear of receiving the COVID-19 vaccine' and am therefore unable to give free and informed consent. It is more than a mere 'conscientious objection'. It is a visceral fear of dying and or being disabled by the severe side effects being experienced around the world.  My firm belief, whether it is right or wrong is completely disabling my ability to give free and informed consent. This fear has been intensified recently with news that research papers that have been released in a U.S.A. court of law in the U.S.A. that have revealed that Pfizer misled the public in its trials and the fact that there were 1,223 trial participants who died in the first 90 days following the vaccine. People should be free to make their own investigations as to what they inject into their body and be able to say not if there are real concerns. The safety data on all the COVID-19 vaccinations is in my opinion nothing short of 'terrifying'. Please see attached data on deaths and adverse reactions from the major data bases for adverse reactions in America.

  1. [40]
    The Department says that on 4 January 2022, Ms Thorley advised the Department that she required further and better particulars in respect to the lawfulness of Direction 1/21 should she decline to be vaccinated against COVID-19.  I have read the 12 page letter Ms Thorley sent to the Director-General outlining her concerns and questions.[6] 
  2. [41]
    Ms Thorley says that the Department's refusal to answer important issues hindered the progress of any compliance with Direction 1/21. For example, Ms Thorley asked whether the Department would indemnify her if she died or had a serious adverse reaction to the vaccine and received no response.
  3. [42]
    The Respondent says that there is no lawful basis upon which Ms Thorley could demand the information requested in her correspondence and that Direction 1/21 clearly outlines the requirements in relation to COVID-19 vaccination as they relate to her employment conditions.
  4. [43]
    The Department says that it is not responsible for allaying Ms Thorley's concerns or anxieties about receiving a COVID-19 vaccine.[7] The Department also says that it is not required to accept Ms Thorley's views about the COVID-19 vaccines.[8] 
  5. [44]
    With regard to Ms Thorley's requests for the scientific basis upon which the Department made the Direction, I would simply note that the Department followed the Chief Health Officer's Direction identifying schools as high-risk settings. For the reasons given above, Direction 1/21 is lawful and this appeal is not the forum for a debate about the merits of the science behind vaccines or public health policy to address the pandemic.

Ms Thorley did not apply for an exemption on the basis of medical grounds

  1. [45]
    The Respondent says that Ms Thorley advised of her intention to seek a medical exemption on 'medical grounds' but that Ms Thorley did not submit a vaccination exemption request in the required form.  The Respondent says that Ms Thorley has not provided any evidence of a medical contraindication to her receiving a COVID-19 vaccination.
  2. [46]
    I note that Ms Thorley has made submissions that she has a morbid fear of receiving the vaccination and is happy to apply for an exemption on that basis.  I also note the Department's submissions that anxiety regarding receiving the COVID-19 vaccine is not a recognised medical contraindication to being able to safely receive a COVID-19 vaccine. 

Consultation

  1. [47]
    One of Ms Thorley's grounds of appeal relates to consultation.  Ms Thorley says that the employer had an obligation to consult with workers and referred me to the discussion of consultation in the matter of Construction, Forestry, Maritime, Mining and Energy Union, Mr Matthew Howard v Mt Arthur Coal Pty Ltd T/A Mt Arthur Coal [2021] FWCFB 6059.

Consultation under the Certified Agreement

  1. [48]
    Ms Thorley also makes submissions that that she (and her union) should have been consulted under the consultation obligations set out in the Department of Education State School Teachers' Certified Agreement 2019 (the Certified Agreement), relevantly at part 3 - Dispute Resolution:

The parties agree that any significant changes to the operation or organisation of the Department which may adversely affect the conditions, workload and/or work-life balance of employees covered by this Agreement shall be the subject of timely consultation between the parties.

  1. [49]
    In response, the Department notes that a) Ms Thorley's representative, Red Union is not a party to that agreement and, b) the matters raised in Ms Thorley's correspondence are not matters covered by the Certified Agreement.
  2. [50]
    The Department submits that Direction 1/21 does not concern the way in which work is done, or the operation or organisation of the Department.  The Department says that Direction 1/21 concerns a response to a public health issue
  3. [51]
    The Department submits that the obligation to consult arises from the WHS Act as discussed above, and not the Certified Agreement as the introduction of Direction 1/21 is not a 'significant change to the operation or organisation of the Department which may adversely affect the conditions, workload and/or work-life balance of employees'.[9]
  4. [52]
    I agree that the obligation to consult with regard to Direction 1/21 arises from the Work Health and Safety Act 2011 and not the consultation provisions set out at Part 3 of the Certified Agreement.  I note the observation of the Full Bench in Brassell-Dellow & Ors v State of Queensland (Queensland Police Service) & Ors [2021] QIRC 356 (Brassell-Dellow) which addressed the Direction to the staff of the QPS:

[101]  Here, the direction does not concern the way in which work is done.  It does not concern "production, program, organisation, structure or technology". It concerns a response to a health issue which is the COVID-19 pandemic and the impact of that disease upon operational policing. The response is to require staff of the QPS to be vaccinated against the disease so as to enable the staff to then go about their work as they have always done. There is no relevant "change".

Consultation arising from the Work Health and Safety Act 2011

  1. [53]
    The Department does not argue that it did not have an obligation to consult.  The Department submits that it has met the requirement to consult per ss 47 and 48 of the WHS Act and consulted with the relevant registered unions representing employees through established processes and the Work Health and Safety peak consultative committee prior to the introduction of Direction 1/21.
  2. [54]
    The Department says that the consultation included dedicated meetings with registered unions representing employees employed within the Department on 6 December 2021 and again on 8 December 2021.  The Department says that all relevant unions indicated their support for Direction 1/21.
  3. [55]
    Ms Thorley says that there is no evidence for the assertion that all unions indicated their support for Direction 1/21 and says that the union she belongs to, Red Union, was not consulted and gave no agreement or support for Direction 1/21.
  4. [56]
    The Department submits that Ms Thorley's representative, Red Union was not included in the consultation process it undertook as it is not a registered industrial organisation.
  5. [57]
    Ms Thorley says that if the Department did not consult with her union, Red Union, it should have consulted with her as an individual. The Department says that its obligation to consult did not require it to consult with employees on an individual basis.
  6. [58]
    The Department says that it has 85,000 employees and that it sent broadcast communications regarding COVID-19 vaccination to employees on 30 November, 3 December, 9 December, 11 December and 16 December 2021.
  7. [59]
    It is clear that Ms Thorley was not a member of a registered union at the time the consultation was taking place. However, she was eligible for membership of the registered union for teachers.  That union (and other relevant registered unions) covered the workforce. In considering the role of trade unions and consultation in Brassell-Dellow, the Full Bench said: 'It is well-established that trade unions may negotiate with employers, not only on behalf of their members, but also on behalf of workers who are eligible for membership'.[10]
  8. [60]
    Ms Thorley submits that Direction 1/21 gave her insufficient time to liaise with doctors, lawyers and union representatives.  Ms Thorley says that the lack of time given to impose Direction 1/21 was not fair and reasonable given to the busy end of year school period with businesses closing down over the late December-early January period.
  9. [61]
    Ms Thorley says that the timeframe for consultation and compliance with Directive 1/21 was too short and that a more appropriate timeframe would have been 3-6 months.
  10. [62]
    It is clear to me from Ms Thorley's written and oral submissions that she felt frustrated and aggrieved when she attempted to seek answers and raise her concerns about the vaccine direction with everyone from her Principal to the Chief Health Officer and Director-General.  Ms Thorley was of the belief that after 16 years of work for the Department in her chosen profession, she deserved more personal attention and that generic communication was not appropriate.
  11. [63]
    While s 48 of the WHS Act sets out requirements for consultation, s 47(1) states that the obligation on the Department of Education was to consult, 'so far as is reasonably practicable'.  The Full Bench in Brassell-Dellow noted that it may be reasonably practicable to consult on a face-to-face basis and fully in terms of s 48 with each individual member of a small workforce.[11]
  12. [64]
    In Brassell-Dellow, the Full Bench considered the description of 'reasonably practicable' by Gaudron J in Slivak v Lurgi (Australia) Pty Ltd [2001] HCA 6:

"The words 'reasonably practicable' have, somewhat surprisingly, been the subject of much judicial consideration.  It is surprising because the words 'reasonably practicable' are ordinary words bearing their ordinary meaning.  And the question whether a measure is or is not reasonably practicable is one which requires no more than the making of a value judgement in the light of all the facts. Nevertheless, three general propositions are to be discerned from the decided cases:

'the phrase 'reasonably practicable' means something narrower than 'physically possible' or 'feasible';

what is 'reasonably practicable' is to be judged on the basis of what was known at the relevant time;

to determine what is 'reasonably practicable' it is necessary to balance the likelihood of the risk occurring against the cost, time and trouble necessary to avert the risk.'"

  1. [65]
    It would seem to me that the employer and registered unions would have also appreciated a longer period of consultation.  However, clearly the timeframe of 3-6 months and the individual consultation suggested by Ms Thorley would not have been reasonably practicable with a workforce numbered at approximately 85000 in the circumstances of a global pandemic and given the implementation timeframes surrounding the Direction of the Chief Health Officer and the purpose of Direction 1/21.
  2. [66]
    While Ms Thorley did not have the opportunity for individual consultation with regard to Direction 1/21, it is clear that employees of the Department received a range of communication regarding the requirement to be vaccinated against COVID-19 and that the Department consulted with the relevant unions.  

Breach of Contract

  1. [67]
    Ms Thorley makes various submissions that the direction to be vaccinated was a new condition that was not part of her contract of work.  These submissions also make reference to adverse action, breach of contract and constructive dismissal.   These are not matters that are within the scope of this appeal.  However, as Ms Thorley's submissions repeatedly raise the issue of her 'contract of employment', I note that in Brassell-Dellow the Full Bench addressed the matter of a direction given to an employee:
  1. [65]
    A direction given to an employee does not, without more, become a term or condition of employment.  This is made clear in the management prerogative cases.  Where a directive is within the scope of employment and it is not contrary to the employment contract, the award or any certified agreement, the direction must be obeyed provided compliance does not involve illegality and the directive is reasonable.[12]
  1. [68]
    As noted elsewhere in this decision, the Direction 1/21 giving effect to the Chief Health Officer's COVID-19 Vaccination Requirements for Workers in a high-risk setting Direction was a lawful Direction implemented following consultation as required under the WHS Act.

Human Rights

  1. [69]
    Ms Thorley submits that the suspension without pay decision is an unjustifiable incursion on her human rights. Ms Thorley says that Ms Hastie-Burroughs has 'no authority to overrule the conditions of the Covid-19 Emergency Response Act (2020) s 4 which clearly states that it does not override the Human Rights Act 2019'.
  2. [70]
    The Respondent says that Ms Thorley's human rights were taken into account by Ms Hastie-Burroughs when determining to suspend her without pay. Ms Hastie-Burroughs considered that any potential limitation of Ms Thorley's human rights was reasonable and justifiable noting the Department's statutory accountability obligations regarding public monies.
  3. [71]
    Ms Thorley's human rights have been considered by Ms Hastie-Burroughs and in balancing Ms Thorley's human rights against other factors to be taken into account, it was open to Ms Hastie-Burroughs to determine to suspend Ms Thorley without pay.

Was it open to Ms Hastie-Burroughs to form a reasonable belief that Ms Thorley may be liable for discipline?

  1. [72]
    I note that the decision before me includes no disciplinary finding against Ms Thorley.
  2. [73]
    The decision to suspend an employee can be made on the basis of a reasonable belief that the employee may be liable for discipline under a disciplinary law.
  3. [74]
    Grounds for discipline are set out at s 187 of the PS Act. s 187(1)(d) establishes a ground of discipline where an employee has 'contravened without reasonable excuse, a direction given to the employee as a public service employee by a responsible person'.  Ms Thorley was directed to be vaccinated by way of Direction 1/21.  Ms Thorley did not apply for or receive an exemption.  It is clear from the written and oral submissions received in this matter that Ms Thorley has not received the vaccination.
  4. [75]
    It was reasonable for Ms Hastie-Burroughs to form a reasonable belief that Ms Thorley may be liable for discipline under a disciplinary law, as she has not complied with a direction given to her by a responsible person.
  5. [76]
    Whether or not Ms Thorley had a 'reasonable excuse' for contravening the decision is not a matter for this appeal.  Ms Thorley will have the opportunity to make submissions regarding a potential disciplinary finding should a disciplinary show cause process be commenced against her.
  6. [77]
    Ms Thorley makes submissions regarding the unfairness of punishing her for not complying with Direction 1/21.  I note that as no disciplinary finding has been made and there has been no decision regarding discipline to which Ms Thorley may be liable, submissions regarding the unfairness or otherwise of 'punishment' are not relevant to this appeal.

Was it reasonable for Ms Hastie-Burroughs to consider that there were no reasonable alternatives, including reasonable duties, a temporary transfer or another alternative working arrangement, available to Ms Thorley?

  1. [78]
    Ms Thorley contends that she should have had the opportunity to meet, be afforded compassionate understanding and a chance to work through other options.  Ms Thorley points to the reference made in Direction 1/21 at cls 8 and 9 to arrangements to be made where staff are unvaccinated as evidence that there was a capacity for unvaccinated people to be at work.  Ms Thorley says that Ms Hastie-Burroughs made no effort to contact her or to discuss any alternative duties or 'reasonable adjustments'.
  2. [79]
    I have considered cls 8 and 9 and make the following observations: cl 8 refers to quite onerous arrangements to be put in place where an employee has an exemption from vaccination.  Clause 9 refers to specific circumstances where in an emergency, or on the basis of permission granted from the Chief Health Officer, an unvaccinated person may enter a high-risk setting.
  3. [80]
    These clauses are clearly not intended to provide circumstances where an employee without an exemption is able to attend work on a normal day to day basis.
  4. [81]
    The Respondent says that while there may have been periods where schools have been closed during COVID-19 lockdowns and Ms Thorley performed duties from home, this is not an available option when students and teachers are required to come to school. Ms Thorley is required to be present in the classroom and cannot perform her duties from home.
  5. [82]
    I note that Ms Thorley's representative suggested that she could 'mark homework', 'empty bins' or 'vacuum' at a location that is not high risk.  Ms Thorley's representative also made reference to what she considered would be many jobs across the public service that Ms Thorley could undertake.
  6. [83]
    I note that in the suspension from duty letter Ms Thorley received on 10 January 2022, Ms Gillies-Day addressed the matter of alternative duties and said:

…given your role I do not consider there are any reasonable alternatives to your suspension from duty in light of your alleged contravention of the Direction.

Early childhood, primary and secondary educational settings have been declared by the Chief Health Officer as high-risk settings for the transmission of the COVID-19 virus 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.  As your role requires your physical attendance at a school or early childhood and care service, alternative duties in these high-risk settings are not viable while you remain unvaccinated. I also do not believe there are any meaningful duties you can reasonably perform from home in your role.

  1. [84]
    Ms Hastie-Burrough's decision indicated that at the time the decision was made to suspend Ms Thorley without pay, the circumstances set out above by Ms Gillies-Day remained the same.
  2. [85]
    Ms Thorley is a classroom teacher and the delegate determined that her role was unable to be undertaken elsewhere. It was not for the Department to undertake a state-wide search of the public service to find another role Ms Thorley could undertake. Ms Thorley is a school teacher and in circumstances where education settings had been deemed high risk locations which she would be unable to enter from 17 December 2021, it was entirely reasonable for Ms Hastie-Burroughs to determine that there was no reasonable alternative role or reasonable adjustments available which appropriate managed the risk that arises from Ms Thorley's non-compliance with Directive 1/21.

Was it reasonable for Ms Hastie-Burroughs to consider it was not appropriate for Ms Thorley to be entitled to normal remuneration during the suspension having regard to the nature of the discipline to which it was believed Ms Thorley was liable?

  1. [86]
    Submissions were made at the hearing with regard to Ms Thorley's personal situation.  Ms Thorley's husband is also a teacher who has not been vaccinated.  They have three children and are struggling to pay for the children's activities and their mortgage.
  2. [87]
    Ms Thorley said that she entered into her mortgage on the basis that she and her husband would both be earning an income from teaching and that Ms Thorley expected to continue teaching for many years. 
  3. [88]
    Ms Thorley says that she should not be asked to surrender her contract without compensation. Ms Thorley says that it took her 4 years to train and cost thousands of dollars.  Ms Thorley says that it would be extremely difficult for her to gain new work with pay similar to that of a 16 year experienced teacher.  With regard to this submission, I note that the appeal before me is against a decision to suspend Ms Thorley without pay, not the termination of Ms Thorley's employment. 
  4. [89]
    The Department says that it acknowledges the suspension without pay will have a financial impact on Ms Thorley but that this is only one factor to be considered.[13] Any adverse impact on Ms Thorley's personal circumstances must be balanced against the Department's obligation to ensure the effective, efficient and appropriate use of public resources, including the spending of public funds.
  5. [90]
    The Department submit that it can be reasonably inferred that there may have been other people employed by the Department who, for their own personal reasons, did not receive a COVID-19 vaccine until it became a requirement of their employment.  The Department says that it would be unfair to these people if Ms Thorley were to continue to be paid while suspended when the only reason for her suspension is her failure to receive a COVID-19 vaccine.
  6. [91]
    The Department submits that:

Given her failure to comply with Direction 1/21, the time she had to engage with and comply with Direction 1/21, the engagement and consultation undertaken by the Department, the nature of the discipline to which she may be liable and the time it may take to conclude a disciplinary process, Ms Hastie-Burroughs determined it was not responsible or appropriate to use public monies to allow Ms Thorley to continue to be paid whilst the process was underway.

  1. [92]
    Ms Thorley addressed me at the oral hearing yesterday and spoke with great emotion about the toll that being without income is having on her family and her financial security.  I appreciate that Ms Thorley is finding being without income very difficult.  However, I note that there is nothing precluding Ms Thorley from seeking other work with an employer who does not require her to be vaccinated. 
  2. [93]
    Direction 1/21 mandates the COVID-19 vaccine for employees.  It is clear that if an employee does not have a medical exemption and does not take steps to comply with the direction to be vaccinated, the employee has exercised a choice to refuse the direction.  The consequences of that choice are made clear at cl 9 of Direction 1/21 which states that unvaccinated workers may not enter a high risk setting.  A review of the correspondence provided to the Department by Ms Thorley makes it clear that she was aware of the potentially serious professional and personal consequences of not complying with the direction.  Ms Thorley's remarks at the oral hearing of the matter demonstrate that she continues to experience those consequences as a result of her non-compliance with Direction 1/21.
  3. [94]
    Given the nature of the discipline matter, it was fair and reasonable for Ms Hastie-Burroughs to consider it was not in the public interest for Ms Thorley to continue to be paid her normal remuneration in circumstances where Ms Thorley has made a choice not to follow the direction given to her by her employer and was therefore unable to attend to her normal work duties. 

Was the suspension made in accordance with the principles of natural justice, the PS Act; and the Directive?

  1. [95]
    The Department say that Ms Thorley had an opportunity to respond to the proposed suspension from duty without pay and that she took advantage of that opportunity.
  2. [96]
    I have reviewed the show cause documentation and Ms Thorley's responses throughout the process.
  3. [97]
    There is no evidence before me that Ms Thorley was not afforded natural justice throughout the process.
  4. [98]
    After considering the written and oral submissions of the parties, I have determined that the decision of Ms Hastie-Burroughs made 17 February 2022 to suspend Ms Thorley without pay was fair and reasonable.
  5. [99]
    I note Ms Thorley had filed an application within proceedings on 22 March 2022 to apply for a stay on the decision made 17 February 2022. As the substantive matter has now been dealt with, I find a decision regarding a stay is no longer required.

Order

  1. The Decision appealed against is confirmed.

Footnotes

[1] Public Service Act 2008, s 194(1)(bb).

[2] Public Service Act 2008, s 196(bb).

[3] Industrial Relations Act 2016, s 564.

[4] Respondent Submissions filed 8 March 2022, Attachment 1.

[5] Respondent's Submissions filed 8 March 2022, Attachment 3.

[6] Respondent's Submissions filed 8 March 2022, Attachment 2.

[7] Slykerman v State of Queensland (Queensland Health) [2022] QIRC 039, [34]-[40].

[8] Higgins v State of Queensland (Queensland Police Service) [2022] QIRC 030, [61].

[9] Directive 1/21, part 3, page 12.

[10] R v Dunlop Rubber Australia Ltd: Ex parte Federated Miscellaneous Workers' Union of Australia (1957) 97 CLR 1; and Regional Express Holdings Limited v Australian Federation of Air Pilots (2017) 262 CLR 456.

[11] Brassell-Dellow & Ors v State of Queensland (Queensland Police Service) & Ors [2021] QIRC 356, [124].

[12] Brassell-Dellow citing R v Darling Island Stevedoring and Lighter; ex parte Halliday and Sullivan (1948) 60 CLR 601, 621-622.

[13] Tilley v State of Queensland (Queensland Health) [2022] QIRC 002, [47].

Close

Editorial Notes

  • Published Case Name:

    Thorley v State of Queensland (Department of Education)

  • Shortened Case Name:

    Thorley v State of Queensland (Department of Education)

  • MNC:

    [2022] QIRC 133

  • Court:

    QIRC

  • Judge(s):

    Member Pidgeon IC

  • Date:

    06 Apr 2022

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Brasell-Dellow v State of Queensland, (Queensland Police Service) [2021] QIRC 356
3 citations
Jump To
Cite 1 - [2021] QIRC 356
Cite 2 - [2021] QIRC 356
Cite 3 - [2021] QIRC 356
Higgins v State of Queensland (Queensland Health) [2022] QIRC 30
2 citations
Jump To
Cite 1 - [2022] QIRC 30
Cite 2 - [2022] QIRC 30
Mr Matthew Howard v Mt Arthur Coal Pty Ltd T/A Mt Arthur Coal [2021] FWCFB 6059
1 citation
Jump To
Cite 1 - [2021] FWCFB 6059
R v Darling Island Stevedoring and Lighter; ex parte Halliday and Sullivan (1948) 60 CLR 601
1 citation
Jump To
Cite 1 - (1948) 60 CLR 601
Regional Express Holdings Limited v Australian Federation of Air Pilots (2017) 262 CLR 456
1 citation
Jump To
Cite 1 - (2017) 262 CLR 456
Slivak v Lurgi Australia Pty Ltd [2001] HCA 6
1 citation
Jump To
Cite 1 - [2001] HCA 6
Slykerman v State of Queensland (Queensland Health) [2022] QIRC 39
2 citations
Jump To
Cite 1 - [2022] QIRC 39
Cite 2 - [2022] QIRC 39
Tilley v State of Queensland (Queensland Health) [2022] QIRC 2
2 citations
Jump To
Cite 1 - [2022] QIRC 2
Cite 2 - [2022] QIRC 2
Worladge v Doddridge (1957) 97 CLR 1
1 citation
Jump To
Cite 1 - (1957) 97 CLR 1

Cases Citing

Case NameFull CitationFrequency
Allison v State of Queensland (Department of Education) [2024] QIRC 2638 citations
Bailey v State of Queensland (Department of Education) [2024] QIRC 2182 citations
Bakhash v State of Queensland (Department of Education) [2022] QIRC 3621 citation
Bax v State of Queensland (Queensland Health) [2022] QIRC 3043 citations
Beber v State of Queensland (Department of Education) [2022] QIRC 2955 citations
Bowcock v State of Queensland (Department of Education) [2024] QIRC 282 citations
Colebourne v State of Queensland (Queensland Police Service) [2025] QIRC 1231 citation
Collins v State of Queensland (Queensland Health) [2022] QIRC 3182 citations
Currie (Murray) v State of Queensland (Department of Education) [2022] QIRC 2695 citations
Darveniza v State of Queensland (Department of Education) [2024] QIRC 2972 citations
Dau v State of Queensland (Department of Education) [2025] QIRC 821 citation
Davenport v State of Queensland (Department of Education) [2024] QIRC 2063 citations
Donzenac v State of Queensland (Queensland Health) [2022] QIRC 3912 citations
Duck v State of Queensland (Department of Education) [2022] QIRC 3472 citations
Gatongi v State of Queensland (Department of Education) [2024] QIRC 2332 citations
Harry v State of Queensland (Queensland Health) [2022] QIRC 2932 citations
Jones v State of Queensland (Queensland Ambulance Service) [2023] QIRC 222 citations
Meni v State of Queensland (Department of Education) [2023] QIRC 181 citation
Nicolson v State of Queensland (Department of Education) [2025] QIRC 722 citations
Parry v State of Queensland (Department of Education) [2024] QIRC 422 citations
Perichon v State of Queensland (Department of Education) [2022] QIRC 4952 citations
Radanovic v State of Queensland (Department of Education) [2024] QIRC 2251 citation
Rossiter v State of Queensland (Department of Education) [2024] QIRC 252 citations
Rowe v State of Queensland (Department of Education) [2024] QIRC 2483 citations
Saba v State of Queensland (Department of Education) [2022] QIRC 3842 citations
Sankey v State of Queensland (Department of Education) [2024] QIRC 1972 citations
Smith v State of Queensland (Department of Education) [2024] QIRC 2432 citations
Starkey v State of Queensland (Department of Education) [2024] QIRC 2962 citations
Steenson v State of Queensland (Department of Education) [2024] QIRC 2422 citations
Sturgess v State of Queensland (Department of Education) [2024] QIRC 2362 citations
Tadeo v State of Queensland (Department of Education) [2022] QIRC 1772 citations
Thorley v State of Queensland (Department of Education) [2024] QIRC 262 citations
Tilley v State of Queensland (Queensland Health) [2023] QIRC 2621 citation
Tilley v State of Queensland (Queensland Health) (Disciplinary Decision) [2024] QIRC 2521 citation
Vaughan v State of Queensland (Department of Education) [2025] QIRC 751 citation
1

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