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Nicholas v State of Queensland (Department of Education) QIRC 157
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
Nicholas v State of Queensland (Department of Education)  QIRC 157
Nicholas, Gregory Ross
State of Queensland (Department of Education)
Public Service Appeal – appeal against a suspension without pay decision
11 May 2022
On the papers
The appeal is dismissed for want of jurisdiction.
PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – Public Service Appeal – appeal against a suspension without pay decision – appeal lodged out of time – whether extension of time should be granted – extension of time not granted
Industrial Relations Act 2016 (Qld), s 564
Public Service Act 2008 (Qld), ss 137 and 194
A1 Rubber (Aust) Pty Ltd v Chapman (Office of Industrial Relations)  ICQ 16
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Bruce Anthony Piggott v State of Queensland  ICQ 35
Chapman v State of Queensland  QCA 172
Reasons for Decision
- Mr Gregory Ross Nicholas ('the Appellant') is employed by the State of Queensland (Department of Education) ('the Respondent') as a Cleaner at the Morayfield State High School.
- By letter dated 10 January 2022, the Appellant was advised by Ms Genevieve Gillies-Day, Executive Director, Safety and Integrity, that the Respondent's records indicated that the Appellant had not provided evidence of receiving the required dose of a COVID-19 vaccine in accordance with the Department of Education Employment Direction 1/21 – COVID-19 Vaccinations ('the Direction'). Ms Gillies-Day advised that she was of the reasonable view that the Appellant may be liable to discipline under a disciplinary law pursuant to s 137(1)(b) of the Public Service Act 2008 (Qld) ('the PS Act') and determined that the Appellant be suspended from duty on normal remuneration.
- The letter dated 10 January 2022 further informed the Appellant that Ms Gillies-Day was also giving consideration to suspending the Appellant without pay pursuant to s 137(4) of the PS Act. The Appellant was afforded with seven calendar days to provide a response to the proposed suspension without pay.
- A response was subsequently provided by the Appellant on 18 January 2022 and by letter dated 21 January 2022, Ms Gillies-Day advised the Appellant that he be suspended from duty without pay, from the date of the letter and that the suspension without pay would remain in place until 30 June 2022, or until otherwise advised.
- By appeal notice filed on 28 March 2022, the Appellant appeals the decision to suspend the Appellant without pay pursuant to s 194(1)(bb) of the PS Act.
- Following receipt of the appeal notice, it was evident that the appeal was filed beyond the 21 day statutory time limit. Accordingly, the jurisdictional issue must first be considered to determine whether discretion is exercised to extend the timeframe in which the appeal may be filed pursuant to s 564 of the Industrial Relations Act 2016 (Qld) ('the IR Act'). A Directions Order was issued to parties, calling for submissions as to whether an extension of time should be granted.
- On 16 December 2021, the Direction was issued by the Director-General of the Respondent.
- Clause 2 of the Direction provides that compliance with the Direction is mandatory. Clause 3 of the Direction outlines the purpose of the Direction:
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.
- Clause 4 of the Direction outlines that the Direction applies to all workers of the Respondent who attend a high-risk setting as part of their role or the services they provide. The term 'high-risk setting' is defined under the Direction as follow:
High-Risk Setting means Early childhood, primary and secondary educational 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
• kindergartens, registered and licensed early childhood settings and family day-care providers
if part of a high-risk setting is not co-located and meets the requirements in paragraph 13 of the CHO Direction, a person engaged or employed to undertake work in that part of the high-risk setting is not subject to COVID-19 vaccination requirements.
- Clause 5 of the Direction provides that all workers whose role requires any attendance in high-risk setting must have received the first dose of a COVID-19 vaccine by 17 December 2021 and show evidence of having received the first dose by no later than 7 January 2022. Further, workers must have received a prescribed number of doses of a COVID-19 vaccine by 23 January 2022 and show evidence of having received the prescribed number of COVID-19 vaccines by 24 January 2022.
- Clause 8 of the Direction provides an exemption application will be considered where the employee has a recognised medical contraindication, or the worker is a COVID-19 vaccine trial participant supported by an eligible health professional.
Grounds of appeal
- The Appellant attaches the suspension without pay decision with the appeal notice, however, does not outline any reasons for appeal under Part C of the appeal notice.
- The Appellant did not file any submissions in support of his appeal.
- The Respondent submits that any appeal against the decision was required to be filed by 11 February 2021 and as the appeal was not filed until 28 March 2022, the appeal was therefore, filed 'some 45 days late'.
- The Respondent submits that the Appellant has not provided any explanation for the reason he filed the appeal out of time and noted that the Appellant has not complied with the Directions Order as he did not file any submissions as to why an extension of time should be granted. Further, the Appellant did not file submissions that were due to be filed by 4:00pm, 12 April 2022 and did not seek an extension of time to file his submissions.
- The Respondent made further submissions regarding the decision to suspend the Appellant without pay being fair and reasonable. The Respondent submits, in summary, that:
- (a)to date, the Appellant has not applied for an exemption with respect to receiving a COVID-19 vaccine and has not expressed any willingness to receive a COVID-19 vaccine. The Appellant has also not provided any evidence that he has received a dose of a COVID-19 vaccine;
- (b)as a Cleaner, the Appellant is required to be present in the school to perform a range of cleaning duties to ensure a clean, hygienic and safe environment for staff and students. The Appellant must physically attend the Morayfield State High School to carry out his duties and is unable to perform his duties from home;
- (c)the Appellant did not provide any evidence of circumstances specific to him which meant he was unable to be safely administered the current vaccines. It was therefore reasonable for Ms Gillies-Day to conclude the Appellant's reasons, if any, for not complying with the Direction did not justify the approval of using public funds to pay the Appellant whilst he is suspended and unable to work in a school;
- (d)the Appellant was notified of the proposed suspension without pay and was given an opportunity to respond;
- (e)Ms Gillies-Day considered all reasonable alternatives, including alternative duties or adjustments and remained of the view that there is no reasonable alternative role or reasonable adjustments available;
- (f)in circumstances where education settings had been deemed high risk locations which the Appellant would be unable to enter from 17 December 2021, it was entirely reasonable for Ms Gillies-Day to determine there was no reasonable alternative role or reasonable adjustments available which appropriately managed the risk that arises from the Appellant's non-compliance with the Direction;
- (g)while it is acknowledged the suspension without pay will have a financial impact on the Appellant, this is only one factor to be considered and must be balanced against the Respondent's obligation to ensure the effective, efficient, and appropriate use of public resources, including the spending of public funds;
- (h)the Appellant is not precluded from seeking employment with another employer;
- (i)the Direction mandates the COVID-19 vaccine for employees and the Appellant exercised a choice to refuse the direction. The consequences of failing to be vaccinated are made clear at cl 9 of the Direction which states that unvaccinated workers may not enter a high-risk setting; and
- (j)where there is a basis for a suspension to occur, it is not appropriate for an employee to instead be offered to take a period of leave in lieu of being suspended without pay.
- Section 564 of the IR Act provides for the time limit for appeal:
564 Time limit for appeal
- (1)An appeal against a decision to an industrial tribunal must be started, as required under the rules, within the appeal period.
- (2)However, on an application made during or after the appeal period, the industrial tribunal may allow an appeal to be started within a longer period.
- (3)In this section—
appeal period, for an appeal against a decision to an industrial tribunal, means the period within 21 days after—
- (a)if the decision is given at a hearing—the announcement of the decision at the hearing; or
- (b)if the decision is given through the registrar—the release of the decision; or
- (c)if the decision is a promotion decision—the decision is publicly notified under the Public Service Act 2008; or
- (d)if, under another Act, the decision is given in another way—the decision is given in the other way.
On an application to extend time, the approach of this Court was described by President Hall in the Neophytos Foundadjis v Collin Bailey  ICQ 10 in the following way:
"This Court has traditionally adhered to the view that s. 346 of the Industrial Relations Act 1999 represents a legislative assessment that in the ordinary category of cases, justice will best be served by adhering to a 21 day limitation period, though on occasion the limitation may defeat a perfectly good case and that the discretion to extend time should be exercised only where the applicant for an extension of time discharges a positive burden of demonstrating that the justice of the case requires the indulgence of a further period."
- The matters to be considered when exercising the discretion were outlined in A1 Rubber, where President Martin J stated:
In order to be successful, an applicant must ordinarily discharge the burden in three ways: first, the applicant must demonstrate that the justice of the case requires the indulgence sought; secondly, the applicant must demonstrate that the case sought to be appealed has prospects of success; thirdly, there must be an explanation of the delay between the expiry of the time period and the time at which the application was filed…
Explanation for delay
- The decision the subject of this appeal was made on 21 January 2022. The appeal was filed on 28 March 2022 and is therefore, filed 45 days beyond the 21 day time limitation period. This is a significant period of delay in the context of a 21 day time limit.
- The Appellant did not indicate that he was applying for an extension of time to lodge the appeal in the appeal notice nor did the Appellant provide submissions seeking to lodge the appeal beyond the 21 day statutory time period.
- The Appellant did not provide an explanation for the delay in filing the appeal in accordance with the Directions Order. The Respondent subsequently filed submissions addressing the jurisdictional issue in their written submissions.
- Parties were provided with a further opportunity to make oral submissions or provide further written submissions pursuant to the Directions Order issued to parties. The Appellant did not seek to do so.
- The parliament has legislated a 21 day time period for an appeal to be filed and the existence of compelling reasons for any delay are required to extend this timeframe. In the absence of any explanation for the delay, it appears that no such reasons are evident in this matter.
Prospects of success
- A consideration of the Appellant's prospects of success is necessary in determining whether an extension of time should be granted.
- The Queensland Court of Appeal considered this point in Chapman v State of Queensland, stating:
…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…
- The 21 day time limit should not easily be dispensed with, and where it appears that the Appellant has no, or very limited, prospects of success, the Commission would not normally grant an extension of time. Having considered the material before me, I am not of the view that this appeal has good prospects of success for the reasons outlined below.
- The notice of appeal attached correspondence from the Respondent which advised that a decision had been made to suspend the Appellant from duty without pay.
- Section 137(1)(b) of the PS Act provides that a chief executive may suspend an employee from duty if they reasonable believe the employee is liable to discipline under a disciplinary law.
- The Appellant is an employee who works in a high-risk setting and is required to demonstrate compliance with the COVID-19 vaccination requirements outlined in the Direction. The Appellant did not seek an exemption, nor did he provide any reasons to the decision maker to suggest that he was unable to be safely administered the COVID-19 vaccines. The decision maker considered alternative duties or adjustments and determined that there was no reasonable alternative role or reasonable adjustments available to the Appellant's role as a Cleaner in a school.
- In these circumstances, it is unlikely that it would be considered unreasonable for the decision maker to have determined that the Appellant may be liable to discipline under a disciplinary law having not complied with a reasonable and lawful direction. It is likely that it would be considered reasonable for the decision maker to determine that it was not in the public interest for the Appellant to continue to be paid his normal remuneration in circumstances where the Appellant had made a choice to not follow the Direction in the absence of any exceptional circumstances.
- In consideration of the above, I consider that the appeal has very limited prospects of success.
Justice of the case
- The prejudice to the Respondent in allowing the appeal is that it will not be able to rely upon the statutory time limit.
- The consequence of not extending the time period for the Appellant is that the appeal will not be determined. The prejudice to the Appellant will be that the appeal against the decision will not be subject to independent consideration, however, as noted above, I consider the prospects of success in this matter to be limited. In these circumstances, it would not, in my view, be unjust to determine that the time period should not be extended.
- In consideration of the above factors, I do not consider that there is a reasonable ground to extend the time for filing this appeal and have determined not to exercise my discretion pursuant to s 564(2) of the IR Act.
- I make the following order:
The appeal is dismissed for want of jurisdiction.
- Published Case Name:
Nicholas v State of Queensland (Department of Education)
- Shortened Case Name:
Nicholas v State of Queensland (Department of Education)
 QIRC 157
Member Power IC
11 May 2022