Gorry v State of Queensland (Department of Education)
[2022] QIRC 196
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- Unreported Judgment
- Gorry v State of Queensland (Department of Education)[2022] QIRC 196
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Gorry v State of Queensland (Department of Education)[2022] QIRC 196
Gorry v State of Queensland (Department of Education)[2022] QIRC 196
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Gorry v State of Queensland (Department of Education) [2022] QIRC 196 |
PARTIES: | Gorry, Ruth Michelle (Appellant) v State of Queensland (Department of Education) (Respondent) |
CASE NO.: | PSA/2022/213 |
PROCEEDING: | Public Service Appeal – Suspension without pay |
DELIVERED ON: | 6 June 2022 |
HEARD AT: | On the papers |
MEMBER: | McLennan IC |
ORDER: | Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016, the decision appealed against is confirmed. |
CATCHWORDS: | PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – PUBLIC SERVICE APPEAL – suspension without remuneration decision – whether decision to suspend appellant without remuneration was fair and reasonable – whether respondent considered alternative arrangements – where decision was fair and reasonable – decision appealed against confirmed |
LEGISLATION & OTHER INSTRUMENTS: | Industrial Relations Act 2016 (Qld) s 451, s 562B, s 562C, s 564 Public Service Act 2008 (Qld) s 137, s 187, s 194 Directive 16/20 Suspension cl 1, cl 5 Employment Direction 1/21 - COVID-19 Vaccinations, s 3, s 4, s 5, s 8, s 9 |
CASES: | Colebourne v State of Queensland (Queensland Police Service) [2022] QIRC 018 Gilmour v Waddell & Ors [2019] QSC 170 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 Radev v State of Queensland (Queensland Police Service) [2021] QIRC 414 Tilley v State of Queensland (Queensland Health) [2022] QIRC 002 |
Reasons for Decision
Introduction
- [1]Mrs Ruth Gorry (the Appellant) is employed as a Teacher Aide at Mansfield State High School by the Department of Education, State of Queensland (the Department; the Respondent).[1]
- [2]On 16 December 2021, the Director-General of the Department issued the Department of Education Employment Direction 1/21 - COVID-19 Vaccinations (the Direction).[2]
- [3]Relevantly, s 5 of the Direction mandates:
All Department of Education workers whose role (employed or otherwise) requires any attendance in a high-risk setting must:
- a.have received the first dose of a COVID-19 vaccine by 17 December 2021;
- b.as soon as reasonably practicable after the first dose of the COVID-19 vaccine and in any event no later than 5pm AEST on 7 January 2022, show evidence of having received the first dose in line with section 6 below;
- c.have received the prescribed number of doses of a COVID-19 vaccine by 11:59pm AEST on 23 January 2022; and
- d.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 in line with section 6 below.
- [4]Section 3 of the Direction prescribes that "high-risk settings" include schools and outdoor education facilities.
- [5]Section 8 of the Direction affords employees the opportunity to apply for an exemption from compliance with the Direction due to medical contraindication or participation in a clinical trial.
- [6]The Appellant did not apply for an exemption.[3]
- [7]Pursuant to s 9 of the Direction, 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.
- [8]On 10 January 2022, the Respondent advised the Appellant she was suspended on normal remuneration pursuant to s 137(1)(b) of the PS Act and invited the Appellant to show cause within seven days as to why she should not be suspended without remuneration.[4] That advice was contained in correspondence from Ms Genevieve Gillies-Day, Executive Director, People and Corporate Services.[5]
- [9]On 16 January 2022, the Appellant provided a response.[6]
- [10]On 27 January 2022, the Respondent advised the Appellant of the decision to suspend her without remuneration effective immediately (the Suspension Decision).[7] The Suspension Decision was conveyed in correspondence from Ms Kristy Springer, A/Executive Director of the Department (the decision-maker).
- [11]On 7 February 2022, the Appellant filed an Appeal Notice with the Industrial Registry.
Jurisdiction
The decision subject of this appeal
- [12]On p 3 of the Appeal Notice, the Appellant identifies the type of decision being appealed as "a decision about suspension without pay".
- [13]Section 194(1)(bb) of the Public Service Act 2008 (Qld) (the PS Act) provides that an appeal may be made against a decision to suspend a public service employee without entitlement to normal remuneration under s 137. On that basis, I am satisfied the Suspension Decision is appealable.
Timeframe for appeal
- [14]Section 564(3) of the Industrial Relations Act 2016 (Qld) (the IR Act) requires that an appeal be lodged within 21 days after the day the decision appealed against is given. That is the relevant inquiry with respect to timeframes. I note that despite the question posed in the Form 89 – Appeal Notice regarding when the decision was received.
- [15]The Decision was given on 27 January 2022 and the Appeal Notice was filed on 7 February 2022. Therefore, I am satisfied the Appeal Notice was filed by the Appellant within the required timeframe.
What decisions can the Commission make?
- [16]Section 562C of the IR Act prescribes that the Commission may determine to either:
- confirm the decision appealed against;
- set the decision aside and return the matter to the decision-maker with a copy of the decision on appeal and any directions considered appropriate; or
- set the decision aside and substitute another decision.
Consideration
Appeal principles
- [17]Section 562B(2)-(3) of the IR Act provides that the appeal is decided by reviewing the decision appealed against "to decide whether the decision appealed against was fair and reasonable".
- [18]The appeal is not conducted by way of re–hearing, but rather involves a review of the decision arrived at by the decision-maker and the associated decision–making process.
- [19]Findings made by the decision-maker, which are reasonably open to him or her, should not be disturbed on appeal. Even so, in reviewing the decision appealed against, the Commission may allow other evidence to be taken into account.
- [20]The relevant principles in considering whether a decision is 'unreasonable' were enunciated by Ryan J in Gilmour v Waddell & Ors (emphasis added, citations removed):[8]
The focus of a review of the reasonableness, or unreasonableness, of a decision is on whether the decision is so unreasonable that it lacks intelligent justification in all of the relevant circumstances.
The legal standard of unreasonableness is to be considered by reference to the subject matter, scope and purpose of the statute conferring the power.
A court considering an argument that a decision is unreasonable is not undertaking a merits review. If a decision may be reasonably justified, then it is not an unreasonable decision, even if a reviewing court might disagree with it.
The pluarity in Li said:
… when something is to be done within the discretion of an authority, it is to be done according to the rules of reason and justice. That is what is meant by ‘according to law’. It is to be legal and regular, not vague and fanciful …
… there is an area within which a decision-maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. Properly applied, a standard of legal reasonableness does not involve substituting a court’s view as to how a discretion should be applied for that of a decision-maker …
… it is necessary to look to the scope and purpose of the statute conferring the discretionary power and its real object … The legal standard of reasonableness must be the standard indicated by the true construction of the statute. It is necessary to construe the statute because the question to which the standard of reasonableness is addressed is whether the statutory power has been abused.
… Unreasonableness is a conclusion which may be applied to a decision which lacks an evidence and intelligible justification.
Submissions
- [21]I issued a Directions Order on 9 February 2022 inviting the parties to file written submissions. Pursuant to that Directions Order, the Appellant was afforded the opportunity to file any submissions in reply to the Respondent's submissions by 4:00pm on 2 March 2022. The Appellant elected not to do so and instead filed a Form 4 – Application in existing proceedings on 4 March 2022 seeking to file further written submissions in reply.
- [22]On 7 March 2022, I granted the Appellant the opportunity to file further written submissions in reply. The Appellant filed those further submissions on 9 March 2022.
- [23]Upon receipt of the Appellant's submissions filed 9 March 2022, the Respondent wrote to the Industrial Registry to advise that the latest submissions drew to their attention that the Appellant had previously filed written submissions on 16 February 2022. The Respondent advised they were not in receipt of the submissions filed on 16 February 2022 because the Appellant had issued the submissions to an email address of a separate Division of the Department. On that basis, the Respondent sought an extension of time to review and consider the Appellant's submissions filed 16 February 2022 and 9 March 2022.
- [24]Consequently, I directed that the Respondent be given an opportunity to consider and respond to the Appellant's submissions and also directed that the Appellant be given an opportunity thereafter to provide further submissions in reply if necessary.
- [25]Despite herself being afforded a similar indulgence to file further written submissions, in her subsequent written submissions on 31 March 2022, the Appellant raised that the extension granted to the Respondent was unfair. I will not entertain such an argument when that extension was granted because the Appellant had issued the submissions to an alternative email address, the Appellant was afforded a similar indulgence and the Appellant did not raise the argument until 10 days after the Respondent filed their submissions. Further, the Appellant was given an opportunity to respond accordingly and therefore did not suffer any prejudice in my view.
- [26]Pursuant to s 451(1) of the IR Act, no hearing was conducted in deciding this appeal. The matter was decided on the papers.
- [27]I have carefully considered all submissions and annexed materials but have determined not to approach the writing of this decision by summarising the entirety of those submissions and attachments. My focus is on determining whether the Decision appealed against is fair and reasonable so I will instead refer only to the parties' key positions in my consideration of the appeal.
Relevant provisions
- [28]Section 137 of the PS Act outlines the circumstances under which a public service employee may be suspended from duty.
- [29]Pursuant to s 137(1)(b) of the PS Act, the chief executive of a department may, by notice, suspend a public service employee from duty if the chief executive reasonably believes "the employee is liable to discipline under a disciplinary law."
- [30]An employee is entitled to normal remuneration during a suspension unless the employee meets the criteria under s 137(4) of the PS Act, namely:
- (a)the person is suspended under s 137(1)(b) of the PS Act; and
- (b)the chief executive considers it is not appropriate for the employee to be entitled to normal remuneration during the suspension, having regard to the nature of the discipline to which the chief executive believes the person is liable.
- [31]Pursuant to s 137(9) of the PS Act, in suspending a public service employee, the chief executive must comply with the principles of natural justice, the PS Act and Directive 16/20 Suspension (Directive 16/20).
- [32]Section 187(1)(d) of the PS Act provides that the chief executive may discipline the employee if the chief executive is reasonably satisfied the employee has "contravened, without reasonable excuse, a direction given to the employee as a public service employee by a responsible person".
Grounds of appeal
- [33]The Appellant submits the Suspension Decision is unfair and unreasonable because:
- the Respondent initially informed the Appellant she would be suspended with normal remuneration;
- the decision-maker did not take into consideration the Appellant's individual circumstances;
- alternative duties were not properly considered; and
- natural justice has not been afforded.[9]
- [34]I will now consider each of those matters.
Consideration
Initial advice
- [35]The Appellant submits it is not fair or reasonable to suspend her without remuneration because she was first informed she would be suspended with normal remuneration.[10]
- [36]In correspondence dated 10 January 2022, Ms Gillies-Day advised the Appellant:
In the meantime, I have decided to suspend you from duty on normal remuneration. Your suspension will take effect from start of business on 14 January 2022, and, at this stage, will remain in place until 14 April 2022.
…
Proposed suspension without normal remuneration (i.e. without pay)
I am also giving consideration to whether you should be suspended without pay pursuant to section 137(4) of the Act.
In accordance with the principles of natural justice, no determination has been made or will be made about whether you will be suspended without pay until you have had an opportunity to formally respond.
Opportunity to respond
If you would like to respond to why you should not be suspended without pay, please submit your response in writing. You will be afforded 7 calendar days to respond, and accordingly, your response should be provided no later than close of business on Monday 17 January 2022.
…
On receipt and consideration of your response, I will determine whether to suspend you without pay. If you do not respond within the required timeframe, I will make a decision based on the information currently available to me.
You will remain on suspension with full pay until I have considered your response and made a determination as to whether to suspend you from duty without pay. You will be provided with further correspondence to advise you of my decision.
- [37]Upon review of the above excerpt, I note Ms Gillies-Day advised the Appellant she would be suspended on normal remuneration that "at this stage" would remain in place until 14 April 2022. That comment clearly indicates that the arrangement is subject to change prior to 14 April 2022. That interpretation is supported by Ms Gillies-Day's subsequent indication that she is giving consideration to suspending the Appellant without remuneration and that she would determine that matter after the Appellant had an opportunity to formally respond – i.e., shortly after the seven days the Appellant was given to respond.
- [38]Ms Gillies-Day clearly advised that upon receipt of the Appellant's response and following consideration, she would proceed to determine whether to suspend the Appellant without remuneration and that the Appellant would only remain on full pay until that determination was made.
- [39]Upon review of the totality of the correspondence and the context within which it was issued, I find it was not unfair nor unreasonable for the decision-maker to make the decision to suspend the Appellant without remuneration at the time she did.
Individual circumstances
- [40]The Appellant contends the decision-maker did not consider her individual circumstances, submitting she:
- has been an exemplary employee for 13 years at Mansfield State High School;
- is concerned about the safety of the vaccine;
- has previously risked her own health and that of her family to attend the workplace throughout the COVID-19 outbreak;
- is the mother and carer to two disabled young people and cannot afford to be vaccine injured or die;[11] and
- has experienced financial stress as a result of COVID-19 and the vaccination mandate.[12]
- [41]Instead of expanding on her submissions in this regard, the Appellant in her submissions filed 16 February 2022 largely asked several questions of the Respondent.
- [42]Further, the Appellant appears to take issue with the decision-maker not taking into consideration her various concerns about receiving the COVID-19 vaccination. However, there is no evidence before me that suggests the Appellant formally applied for an exemption and she certainly was not granted one. At the point in time when the decision-maker turned to consider the issue of suspension without remuneration, the various reasons for why the Appellant had not complied with the Direction were irrelevant. The fact is that the Appellant did not comply with the Direction and did not have an exemption for that non-compliance. Had the Appellant felt her concerns were substantiated enough to apply for and obtain an exemption, she should have formally applied for an exemption and if her application had been refused, the Appellant should have appealed that refusal. It was not up to the decision-maker in the Suspension Decision to make that determination.
- [43]The Appellant continuously refers to her concerns and visits to medical practitioners regarding her medical condition[13] – respectfully all of that is irrelevant in circumstances where the Appellant did not formally apply and therefore did not receive an exemption.
- [44]Further, I accept the Respondent's submissions that while it is acknowledged that suspension without pay will financially impact the Appellant, that is but one factor to be considered.[14] I find the decision-maker appropriately balanced those impacts against the Department's obligation to ensure the effective, efficient and appropriate use of public resources and the safety of the school community. Further, it is open to the Appellant to seek alternative employment elsewhere.
- [45]The Appellant questions why as an exemplary employee she is being punished for stating her human rights.[15] The Appellant is clearly being suspended because she failed to comply with the Direction and upon review of the Decision I am satisfied the decision-maker fairly and reasonably considered the Appellant's submissions and appropriately weighed those considerations against the objectives and requirements of the Direction, the high level of risk to the health and wellbeing of students, colleagues and families as well as the Department's educational services. Above all, I cannot discern an intention on behalf of the Appellant that she intends to comply with the Direction in the immediate future (as her compliance is subject to satisfaction of safety data) but rather she has evinced a personal preference not to receive the COVID-19 vaccination. In light of those reasons, I cannot identify any unfair or unreasonable omission in the decision-maker's consideration of the Appellant's circumstances.
Alternative working arrangements
- [46]Section 137(3) of the PS Act requires the chief executive to "consider all reasonable alternatives, including alternative duties, a temporary transfer or another alternative working arrangement, that are available to the person."
- [47]In the decision to suspend the Appellant with remuneration, Ms Gillies-Day advised the Appellant that after consideration, she had determined there were no reasonable alternative duties/arrangements or temporary transfer options available in light of the Appellant's alleged contravention of the Direction.[16]
- [48]
- [49]The Appellant provided a letter from Ms Sandy Ebert, Business Manager dated 8 March 2022 which advises (emphasis added):
Michelle has worked with us for 16 hours per week as a teacher aide assisting the art department organising the resources, displays and events associated with her faculty and assisting teachers outside the classroom. She does not provide student support in the classroom.
She works autonomously in ensuring orders are placed and goods received in time to deliver the classroom materials required for effective teaching and learning.
Michelle controls the high-volume loaning, stock take and repairs of audio-visual equipment for the film and TV students and supports staff and students in a calm and efficient manner. She also manages the Chem watch data base for the art department recording over 300 chemicals.
- [50]The above extract indicates that although the Appellant may perform some tasks from home, her role extensively requires her physical attendance at school. Although I accept the Appellant's role encompasses duties outside of the classroom,[19] it is not possible for her to perform all her duties from home. Although the Appellant may perform some duties from home, such arrangements could only reasonably be accommodated for short periods of time and during the lockdown period, were due to circumstances outside the control of the Department and the employees. In comparison, under the current circumstances, it is the Appellant's election not to comply with the Direction that has resulted in her inability to attend the workplace.
- [51]The evidence submitted by the Appellant suggests her role involves loaning, stock-take, repairs as well as organising displays and events which would seemingly require hands on interaction with at least some physical resources as well as interaction with colleagues and students. Although working remotely has been accommodated for most employees in the past due to lockdown periods etc., it is not reasonable for the Appellant to expect her role could be accommodated remotely on a full-time basis in the long term as an alternative to complying with the Direction. That is not an appropriate solution and is not fair on the Appellant's colleagues and students.
- [52]As I found in Radev, there will inevitably be times where the Appellant is required to attend the school and intermingle with other staff members and students to fulfill her duties.[20] I appreciate the positions of Mr Radev and the Appellant are different but consider that the same principle applies in both circumstances.
- [53]The Direction recognises "that a sudden reduction in available workforce would significantly affect the continuity of education services".[21] The Appellant submits mandating COVID-19 vaccinations reduces available workforce.[22] That may be the case, but is justified in light of the objectives of the Direction. In my view, an alternative arrangement is not an operationally feasible option in light of the Appellant's role and is therefore not a reasonable solution.
- [54]In Tilley v State of Queensland (Queensland Health), Industrial Commissioner Hartigan concluded the following:
I am satisfied the Department considered alternative working arrangements for Mr Tilley. I consider that the view formed that there were no alternative working arrangements available for Mr Tilley to perform was a decision open to be made, having regard to the Department's responsibility to manage the risks associated with COVID-19 in the workplace which is frequented by employees, patients and the broader community. [23]
- [55]Similarly, I am satisfied the decision maker considered the possibility of alternative working arrangements. However, in light of the various responsibilities that fall under the Appellant's role, I find that it was fair and reasonable for the Respondent to form the view that there were no alternative working arrangements available having regard to the Department's responsibility to manage the risks associated with COVID-19.
Natural Justice
- [56]Pursuant to s 137(9)(a) of the PS Act, in suspending a public service employee, the chief executive must comply with the principles of natural justice.
- [57]The Appellant contends she has not been informed of the nature of the disciplinary process to which she may be liable and the details of such disciplinary process.[24] However, the Respondent clearly communicated to the Appellant that she may be in breach of the Direction, that she may be suspended from duty if the chief executive reasonably believes she is liable to discipline under a disciplinary law and that the Respondent was of the view that she may be liable to discipline. The show cause letter issued to the Appellant clearly explained the proposed suspension without remuneration and afforded an opportunity to respond. In my view, the Department has taken a step by step approach in the process which is both fair and reasonable. If the Appellant has any queries with respect to the process, she may ask – however the fact that she is currently unaware does not render the process unfair or unreasonable.
- [58]The Appellant submits that "natural justice requires the Department to consult with employees on an individual basis."[25] I accept that the Department complied with its obligations under the Work Health and Safety Act 2011 to consult with employees and with the registered unions representing employees. I reject the argument that natural justice requires the Department to consult with each and every employee and the Appellant has not provided a basis for that submission.
- [59]The correspondence from Ms Gillies-Day dated 10 January 2022 affords the Appellant an opportunity to respond within seven calendar days to the proposed suspension without pay and states that "In accordance with the principles of natural justice, no determination has been made or will be made about whether you will be suspended without pay until you have had an opportunity to formally respond."[26] Ms Gillies-Day also advised that, "If you do not respond within the required timeframe, I will make a decision based on the information currently available to me."[27]
- [60]I find that natural justice was complied with in these circumstances and therefore does not render the Suspension Decision unfair or unreasonable.
Other matters
- [61]
- [62]I accept the Respondent's submission that it is not responsible for allaying the Appellant's concerns or anxieties about receiving the COVID-19 vaccine.[30] Significantly, the Appellant did not apply for an exemption against the requirements under the Direction. In my view, the omission of an exemption application supports the Respondent's conclusion that the use of public funds to continue paying the Appellant whilst she is suspended is not appropriate or reasonable in the circumstances.
- [63]In response to the remaining matters, I refer to Tilley v State of Queensland (Queensland Health) in which Industrial Commissioner Hartigan concluded the following:
- [39]The other matters, referred to above, raised by Mr Tilley form the basis of his personal preference not to receive a vaccine. I do not consider the matters relied on by Mr Tilley result in Directive 12/21 being unreasonable. In this regard, cl 6 of Directive 12/21 identifies the risk posed by the virus to staff, patients and the broader community and the Directive is aimed at minimising such a risk. I consider that to be reasonable.
…
[53] The circumstances of this matter include, Mr Tilley failing to comply with a directive which consequently formed a condition of his employment. Further, Mr Tilley's submission indicates that he does not intend to comply with the condition in the immediate future. Given the nature of the substantiated allegation, I consider that it was available, on the information before the decision maker, to conclude that it was not appropriate for Mr Tilley to receive remuneration during the remainder of the disciplinary process. The Department confirms in its written submissions that Mr Tilley is not precluded from seeking alternative employment with another employer. I am satisfied that in making the decision, the Department has complied with s 137 of the PS Act.[31]
- [64]I similarly conclude that the remaining matters raised by the Appellant evince her personal preference not to receive the COVID-19 vaccination. I do not consider those matters render the Suspension Decision unfair or unreasonable.
- [65]The Appellant's various arguments against the Direction may have been relevant at the stage of considering whether she was eligible for an exemption. However, the Appellant did not apply for an exemption and so at the point this matter came to the decision-maker, her consideration turned to whether the Appellant should be suspended without pay.
- [66]The Respondent appropriately considered the high level of risk to the health and wellbeing of students, families, Departmental workers and other key stakeholders who access Mansfield State High School. I accept it was fair and reasonable for the Respondent to balance the Appellant's views against these important factors.
- [67]The significant number of reasons for why the Appellant takes issue with the Direction indicates that the Appellant does not intend to comply in the immediate future. That factor also suggests it is appropriate to suspend the Appellant without remuneration for the remainder of the disciplinary process.
- [68]The Appellant submits an employer has a certain amount of responsibility in relation to her mental health.[32] The Decision refers the Appellant to the contact details of the Department's Employee Assistance Service, Lifeworks which offers free, confidential counselling to the Appellant. That was reasonable in my view.
- [69]For the reasons outlined above, the Appellant has not convinced me that the Suspension Decision is unfair or unreasonable.
Statutory requirements
- [70]I have considered the Appellant's grounds of appeal and rejected each for the reasons outlined above. Although the following matters were not raised by the Appellant as a specific appeal ground, for completeness I will consider whether the decision maker has complied with the statutory requirements in arriving at the Suspension Decision.
Sections 137(1)(b) & 187(1)(d)
- [71]Section 137(1)(b) of the PS Act permits the chief executive to suspend a public service employee from duty if the chief executive reasonably believes the employee is liable to discipline under a disciplinary law.
- [72]Although the Suspension Decision does not include a disciplinary finding against the Appellant, the Respondent need only have a reasonable belief that the employee is liable to discipline under a disciplinary law. Notably, s 187(1)(d) of the PS Act prescribes grounds for discipline where an employee has "contravened, without reasonable excuse, a direction given to the employee as a public service employee by a responsible person". The Suspension Decision clearly stipulates that although the Appellant was directed to be vaccinated, she did not apply for an exemption and has not received the vaccination.
- [73]In correspondence dated 10 January 2022, Ms Gillies-Day advised the Appellant, "I am of the reasonable view that you may be liable to discipline under a disciplinary law."[33]
- [74]In my view, the fact that the Appellant had refused and was refusing to comply with the Direction is sufficient to induce in the mind of the decision-maker that there was a reasonable belief that the Appellant was liable to discipline under a disciplinary law.[34]
Section 137(4)(b)
- [75]Pursuant to s 137(4)(b) of the PS Act, a public service employee is entitled to normal remuneration during a suspension unless the chief executive considers it is not appropriate, having regard to the nature of the discipline to which the chief executive believes the person is liable.
- [76]The decision-maker considered the nature of the discipline to which she believed the Appellant was liable and I am satisfied that was outlined in justification of suspension without pay as follows:
Unless an individual has a diagnosed medical contraindication or other qualifying exceptional circumstance the Direction is a reasonable one.
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 the department's control.
…
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.
I am not in receipt of any material that indicates 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.[35]
Section 137(9)(c)
- [77]Pursuant to s 137(9)(c) of the PS Act, in suspending a public service employee under this section, the chief executive must comply with Directive 16/20.
- [78]Clause 6 of Directive 16/20 relevantly provides:
- 6.Suspension without remuneration
- 6.1Section 137(4) of the PS Act provides that the chief executive may decide that normal remuneration is not appropriate during a period of suspension where the employee is a public service employee liable to discipline.
- 6.2A decision that normal remuneration is not appropriate during the suspension will usually occur after a period of suspension with remuneration but may be made from the start of the suspension.
- 6.3In deciding that normal remuneration is not appropriate, the factors the chief executive is to consider include:
- (a)the nature of the discipline matter
- (b)any factors not within the control of the agency that are preventing the timely conclusion of the discipline process
- (c)the public interest of the employee remaining on suspension with remuneration.
- [79]I have already concluded above that the Respondent has considered the nature of the discipline matter. With respect to public interest, the Suspension Decision provides:
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 or appropriate use of public funds to allow you to continue to be paid while the process is underway.[36]
- [80]Further, the Respondent's submissions provided:
…while it is acknowledged the suspension without pay will have a financial impact on Ms Gorry, this is only one factor to be considered. This 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;[37]
- [81]In light of the above excerpts, I am satisfied the Respondent complied with Directive 16/20.
Finding
- [82]For the reasons outlined above, I find the Respondent complied with the statutory requirements and have not identified any element that renders the Suspension Decision anything other than fair and reasonable.
Conclusion
- [83]The Suspension Decision set out evidence in support of the ultimate conclusion to suspend the Appellant without remuneration.
- [84]I am satisfied the Decision included intelligible justification following consideration of relevant matters. The Appellant's non-compliance with the Direction is serious and the evidence supporting the Decision is compelling in my view.
- [85]I order accordingly.
Order
- Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016, the decision appealed against is confirmed.
Footnotes
[1] Appeal Notice, 7 February 2022, 1.
[2] Respondent's Submissions, 23 February 2022, 1 [4].
[3] Letter from Ms K. Springer to the Appellant, 27 January 2022, 3.
[4] Letter from Ms G. Gillies-Day to the Appellant, 10 January 2022.
[5] Ibid.
[6] Email from the Appellant to Ms G. Gillies-Day, 16 January 2022.
[7] Letter from Ms K. Springer to the Appellant, 27 January 2022.
[8] [2019] QSC 170, [207]-[210], citing Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, [63]-[76].
[9] Appellant's Submissions, 16 February 2022, [7.3].
[10] Appeal Notice, 7 February 2022.
[11] Email from the Appellant to Ms G. Gillies-Day, 16 January 2022.
[12] Ibid.
[13] Appellant's Submissions in Reply, 9 March 2022, [9].
[14] Respondent's Submissions, 23 February 2022, [26]f.
[15] Appeal Notice, 7 February 2022.
[16] Email from Ms G. Gillies-Day to the Appellant, 10 January 2022.
[17] Appellant's Submissions, 16 February 2022, [4.2].
[18] Appeal Notice, 7 February 2022.
[19] Appellant's Submissions in Reply, 9 March 2022, [7].
[20] [2021] QIRC 414, [54].
[21] Department of Education, Employment Direction 1/21 - COVID-19 Vaccinations, s 3.
[22] Appeal Notice, 7 February 2022.
[23] [2022] QIRC 002.
[24] Appellant's Submissions, 16 February 2022, [7.3].
[25] Appellant's Submissions, 31 March 2022, [3].
[26] Letter from Ms G. Gillies-Day to the Appellant, 10 January 2022, 4.
[27] Ibid.
[28] Email from the Appellant to Ms G. Gillies-Day, 16 January 2022.
[29] Appellant's Submissions, 16 February 2022, [7.1].
[30] With reference to Slykerman v State of Queensland (Queensland Health) [2022] QIRC 039, [34] – [40].
[31] [2022] QIRC 002.
[32] Appellant's Submissions, 31 March 2022, [8].
[33] Letter from Ms G. Gillies-Day to the Appellant, 10 January 2022.
[34] Colebourne v State of Queensland (Queensland Police Service) [2022] QIRC 018, [28]-[30].
[35] Letter from Ms K. Springer to the Appellant, 27 January 2022, 2-3.
[36] Letter from Ms K. Springer to the Appellant, 27 January 2022, 3.
[37] Respondent's Submissions, 23 February 2022, 5 [26]f).