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  4. Spencer v State of Queensland (Queensland Ambulance Service) - [2022] QIRC 266

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Spencer v State of Queensland (Queensland Ambulance Service)[2022] QIRC 266

Spencer v State of Queensland (Queensland Ambulance Service)[2022] QIRC 266

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Spencer v State of Queensland (Queensland Ambulance Service) [2022] QIRC 266

PARTIES:

Spencer, Cheryl

(Appellant)

v

State of Queensland (Queensland Ambulance Service)

(Respondent)

CASE NOS:

PSA/2022/431

PSA/2022/449

PROCEEDING:

Public Service Appeal – appeal against disciplinary decision – appeal against suspension without pay decision

DELIVERED ON:

15 July 2022

MEMBER: HEARD AT:

Pidgeon  IC On the papers

ORDER:

PSA/2022/431

  1. The decision of 23 March 2022 substantiating Allegation 1 and making a finding that Ms Spencer was liable to discipline pursuant to section 187(1)(d) of the PS Act is confirmed.

PSA/2022/449

  1. The decision of 23 March 2022 determining that pursuant to s 137(4) of the PS Act Ms Spencer should be suspended from duty without normal remuneration is confirmed.

CATCHWORDS:

PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – public service appeal – appeal against a disciplinary finding and suspension without pay decision – where the respondent alleges that appellant did not comply with Health Employment Directive No 12/21 EmployeeCOVID-19vaccination requirements – where allegation substantiated – where appellant sought exemption from complying with Directive – where appellant was denied an exemption from complying with Directive – where the appellant was liable to discipline – where the appellant was suspended from duty without normal remuneration – where directive was reasonable – where the disciplinary finding decision was fair and reasonable – where the decision was fair and reasonable – disciplinary finding decision confirmed – decision confirmed

LEGISLATION:

Industrial Relations Act 2016 ss 562B and 562C

Public Service Act 2008 ss 137, 187 and 194

Health Employment Directive No 12/21 Employee COVID-19 vaccination requirements

Work Health and Safety Act 2011

CASES:

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

Kathryn Roy-Chowdhury v The Ivanhoe Girls' Grammar School [2022] FWC 849

Radev v State of Queensland (Queensland Police Service) [2021] QIRC 414

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

Stevens v Epworth Foundation [2022] FWC 593

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

Reasons for Decision

Introduction

  1. [1]
    Ms Cheryl Spencer (the Appellant) is employed by the State of Queensland (Queensland Ambulance Service) (the Respondent) as a Registered Nurse at the Health Contact Centre.
  1. [2]
    On 23 March 2022, following a show cause process, Ms Spencer was informed that:
  1. On the balance of probabilities, the following allegation had been substantiated:

In contravention of a direction given to you by a responsible person, you have not provided to your line manager or uploaded into the designated system evidence of vaccination confirming that you have received the prescribed number of doses of a COVID-19 vaccine.

  1. On the basis of the finding that the allegation had been substantiated, the decision- maker determined that pursuant to section 187(1)(d) of the Public Service Act 2008 (the PS Act), Ms Spencer had contravened, without reasonable excuse, a direction given to her as a public service employee by a responsible person, specifically:

First dot point of clause 8 of the Directive which provides as follows:

"An existing employee must provide

…

  1. evidence of vaccination confirming that the employee has received at least the first dose of a COVID-19 vaccine by no later than 7 days after receiving the vaccine.
  2. evidence of vaccination confirming that the employee has received the second dose of a COVID-19 vaccine by no later than 7 days after receiving the vaccine."
  1. The decision-maker determined that Ms Spencer should be suspended from duty without normal remuneration for the following reasons:
  • Section 137(4) of the Act provides that a 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 under a disciplinary law. On the basis of my findings in relation to Allegation 1 against you and my determination that a discipline ground exists, I am satisfied that you are liable to discipline under a disciplinary law.
  • Clause 6.3 of the Public Service Commission Suspension Directive (Directive: 16/20) (Directive) provides that, in deciding that normal remuneration is not appropriate during suspension, the decision maker must consider the following factors:
  1. The nature of the discipline matter;
  1. Any factors not within the control of the agency that are preventing timely conclusion of the discipline process; and
  2. The public interest of the employee remaining on suspension with remuneration.
  • Having regard to the factors set out at clause 6.3(a) of the Suspension Directive, I note that the allegations against you relate to the contravention of a lawful direction given to you by a responsible person on 20 December 2021. The nature of the discipline matter, therefore, is of the utmost serious nature.
  • Clause 6.3(b) requires that I consider any factors not within the control of the agency that are preventing the timely conclusion of the disciplinary process. I do not consider that there are any current factors not within the control of the agency that are preventing the timely conclusion of the disciplinary process.
  • Clause 6.3(c) of the Suspension Directive requires that I give consideration to the public interest of an employee remaining on suspension with remuneration. Whilst I have considered your response in which you make submissions that suspending you without remuneration would cause financial hardship and that you are under stress as a result of this matter, I have a statutory obligation to manage public resources efficiently, responsibly, and in a fully accountable way. Having regard to your submission and my findings in respect of the allegation, I do not consider it is an appropriate use of public monies for you to remain on suspension with remuneration any longer until the allegation against you has been brough to a conclusion.
  1. [3]
    On 11 April 2022, Ms Spencer filed PSA/2022/431, an appeal against a disciplinary decision.
  1. [4]
    On 12 April 2022, Ms Spencer filed PSA/2022/449, an appeal against a suspension without pay decision.
  1. [5]
    Both of these matters were allocated to me for hearing. I determined that as both of the decisions being appealed were contained in the same correspondence, it would be convenient to consider the matters concurrently and request that submissions be made addressing both matters. The parties filed submissions that provided some information relevant to each matter and then specific submissions under headings related to either the disciplinary matter or the suspension without remuneration matter. Ms Spencer has made several remarks in her correspondence and submissions regarding the fact that the appeals are about separate decisions. I understand this and throughout this decision, I address the matters in turn.  The orders are specific to each decision.

Is the Appellant entitled to appeal?

  1. [6]
    Section 194 of the PS Act lists various categories of decisions against which an appeal may be made. Section 194(eb) provides that an appeal may be made against "a decision a public service employee believes is unfair and unreasonable (a fair treatment decision)". The second decision Ms Spencer appeals is the decision to suspend her without pay, which is provided for at s 194(bb) of the PS Act.
  1. [7]
    The appeal notices were filed with the Industrial Registry on 11 and 12 April 2022, both within 21 days of the decision (on both the disciplinary finding and to suspend without pay)[1]being received on 23 March 2022. I am satisfied that the Appellant may appeal the decision.

Appeal Principles

  1. [8]
    Section 562B(3) of the Industrial Relations Act 2016 (the IR Act) provides that "the purpose of the appeal is to decide whether the decision appealed against was fair and reasonable."
  1. [9]
    Findings made in the decision which are reasonably open on the relevant material or evidence before the decision-maker, should not be expected to be disturbed on appeal.
  1. [10]
    A public service appeal is not an opportunity for a fresh hearing, but a review of the decision arrived at by the decision-maker. To determine the appeal, I will consider whether the decision conveyed to Ms Spencer on 23 March 2022 was fair and reasonable.
  1. [11]
    In deciding this appeal, s 562C(1) of the 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.

Directive 12/21

  1. [12]
    Directive 12/21 sets out the mandatory vaccination requirements for all current and prospective health service employees employed under the Hospital and Health Boards Act 2011 (HHB Act).
  1. [13]
    Clause 1 of Directive 12/21 provides that compliance with the Directive is mandatory. Clause 2 provides that the purpose of Directive 12/21 is to outline COVID-19 vaccination requirements for existing and prospective employees employed in the identified high- risk groups designated in the Directive.
  1. [14]
    Clause 6 of Directive 12/21 identifies the potential risk posed to relevant employees, and the risk profile of those employees as follows:

The COVID-19 virus has been shown to disproportionately affect healthcare workers and health support staff and poses a significant risk to Queensland Health patients, and the broader community.

In recognition of the risks posed by the virus, as well as workplace health and safety obligations incumbent upon both the organisation and employees, this Directive requires health service employees who are identified as being in high risk groups to be vaccinated against COVID-19.

Prospective and existing health service employees subject to these requirements have been identified based on the following risk profile:

  • They are working in an area with suspected or confirmed COVID-19 patients or an area that a COVID-19 patient may enter.
  • They are coming into direct or indirect contact with people who work in an area with COVID-19 patients or an area that a suspected or actual COVID-19 patient may enter.
  • They are unable to observe public health requirements (e.g. physical distancing, working in areas of high population density, rapid donning/doffing of personal protective equipment (PPE) in emergent situations).
  • They have the potential to expose patients, clients, other staff or the broader community to the virus (e.g. occupying shared spaces such as lifts, cafeterias, car parks, with people working with suspected or actual COVID-19 patients).
  1. [15]
    Clause 7 of Directive 12/21 sets out the requirements for vaccination. Relevantly, cl 7.1 states:

In acknowledgment of the risks posed by the COVID-19 virus to the health and safety of Queensland Health employees, patients and the broader community, clauses 8 and 9 of this Directive require all existing and prospective employees who are or are to be employed to work in the cohorts as categorised in accordance with Table 1 (below), to be vaccinated as a condition of employment, subject to certain limited exemptions described in clause 10 of this Directive.

  1. [16]
    Clause 8 of Directive 12/21 sets out the mandatory vaccine requirements for existing employees as follows:
  1. 8.1
    Existing employees currently undertaking work or moving into a role undertaking work listed in a cohort of Table 1, must:
    1. have received at least the first dose of a COVID-19 vaccine by 30 September 2021; and
    2. have received the second dose of a COVID-19 vaccine by 31 October 2021.
  • An existing employee must provide to their line manager or upload into the designated system:
  1. evidence of vaccination confirming that the employee has received at least the first dose of a COVID-19 vaccine by no later than 7 days after receiving the vaccine.
  2. evidence of vaccination confirming that the employee has received the second dose of a COVID-19 vaccine by no later than 7 days after receiving the vaccine.
  • An existing employee must maintain vaccine protection. Therefore, an existing employee is required to receive the prescribed subsequent dose/s of a COVID-19 vaccination (i.e. booster), as may be approved by the Australian Technical Advisory Group on Immunisation (ATAGI), within any recommended timeframe following the second dose. Evidence of vaccination, confirming the employee has received prescribed subsequent dose/s of the vaccine, is to be provided to their line manager or other designated person within 7 days of receiving the vaccine.
  • An existing employee who is required to have received a first or second dose of a COVID- 19 dose at an earlier date under a Chief Health Officer public health direction must be vaccinated by the dates specified in the public health direction.
  • The requirements of this clause 8 do not apply to existing employees who have been granted an exemption under clause 10 of this Directive.
  1. [17]
    Clause 10 of Directive 12/21 provides that where an employee is unable to be vaccinated, an exemption may be granted as follows:
  1. 10.1
    Where an employee is unable to be vaccinated they are required to complete an exemption application form.
  1. 10.2
    Exemptions will be considered in the following circumstances:
    • Where an existing employee has a recognised medical contraindication;
    • Where an existing employee has a genuinely held religious belief;
    • Where another exceptional circumstance exists.
    1. 10.3
      If an existing employee is granted an exemption, they do not have to comply with clause 8 or 9 of this Directive for the duration of that exemption.

    The Appeal

    1. [18]
      These appeals require me to decide if it was fair and reasonable for the decision-maker to:
    1. Substantiate Allegation 1:

    In contravention of a direction given to you by a responsible person, you have not provided to your line manager or uploaded into the designated system evidence of vaccination confirming that you have received the prescribed number of doses of a COVID-19 vaccine.

    1. Determine that pursuant to section 187(1)(d) of the PS Act, Ms Spencer has contravened, without reasonable excuse, a direction given to her as a public service employee by a responsible person.
    1. Determine that in accordance with section 137(4) of the PS Act, Ms Spencer should be suspended from duty without normal remuneration.
    1. [19]
      In order to streamline the process for Ms Spencer, the Respondent and the Commission, I requested that submissions on both matters be made simultaneously. The parties have assisted me by complying with this request and have made it clear where there are submissions regarding both matters and where submissions relate directly to either the disciplinary finding or the suspension without remuneration decision.
    1. [20]
      I will consider the appeal grounds, submissions of each party and come to a conclusion on each matter in turn.

    Was it fair and reasonable to substantiate Allegation 1?

    1. [21]
      Ms Spencer's reasons for appeal are set out in Part C of her Form 89 Appeal Notice. Ms Spencer directs attention to the part of the disciplinary decision which references specific submissions she made in her Show Cause Response. Ms Spencer complains that she has raised issues in good faith and that "QAS simply retorts that they have considered my point but have rejected it." Ms Spencer says that there is no justification given for the rejection of her submissions.
    1. [22]
      Ms Spencer says that she does not come from a legal background and that she has:

    … found the whole methodology grossly unfair and I have no confidence that QAS has made any objective decisions. It appears that the whole process is predetermined and QAS show cause letters are there to just tick boxes so that we can move to their predetermined outcome.

    1. [23]
      Ms Spencer's reply submissions also state that "QAS has predetermined to terminate my employment".
    1. [24]
      Ms Spencer says that she: has not refused to follow a lawful and reasonable workplace direction; has only requested that risk assessment and genuine consultation process be completed prior; and that she has not received a fair hearing.
    1. [25]
      Ms Spencer says that the first notification of the vaccine mandate to herself as an employee of QAS came from Dr John Wakefield (Queensland Health) on 12 September 2021. Ms Spencer says that the communication from Dr Wakefield stated that there was "respect for individual choice" and that where staff may decline to be vaccinated, Queensland Health would seek to provide additional information or support to enable them to be vaccinated. Ms Spencer says that this does not represent respect for individual choice.
    1. [26]
      Ms Spencer says that she is a nurse with over 35 years' standing and that she undertook, and continues to undertake, extensive study and research on the available COVID-19 vaccines. Ms Spencer says that she felt uncomfortable with the safety of the available vaccines and that a more open dialogue with her employer would have been constructive.
    1. [27]
      Ms Spencer refers to the decision of 23 March 2022, where QAS says "it is the position of Queensland Health and the QAS that COVID-19 vaccines are safe and reliable and offer the strongest means of protection for yourself". Ms Spencer says that multiple scientific studies present an alternative viewpoint and that her personal choice to not take the prescribed medication is not taken lightly but is well considered.
    1. [28]
      Ms Spencer asks if an adult can be forced to take medication they do not want. Ms Spencer further questions how her individual choice has been respected and if she has been given the opportunity to exercise her free choice.
    1. [29]
      Ms Spencer says that the vaccination mandate represents a change to the conditions of her employment and that this should have been accompanied with consultation. Ms Spencer says that if "there was a measure of open dialogue, an alternative severance arrangement could have been negotiated for those employees that had serious reservations about taking experimental medication."
    1. [30]
      Ms Spencer says that the only alternative to not taking the vaccine is to be suspended, disciplined and terminated. Ms Spencer says that this does not reflect Dr Wakefield's undertaking to respect individual's choices.

    The vaccine exemption application

    1. [31]
      Ms Spencer attaches her vaccine exemption application which includes in it her reasons for not wanting to be vaccinated. I will not reproduce those reasons here. Ms Spencer says that she was initially given only seven calendar days to request a review of the decision to deny her exemption request. Ms Spencer says that despite receiving an extension of time to request a review, her representative, Nurses Professional Association of Queensland (NPAQ) were inundated with requests over the period of time and that despite Ms Spencer's "valiant attempts" to get to them to reply, NPAQ missed the deadline to request a review.
    1. [32]
      Ms Spencer says that even though the review request was lodged seven days late, it would have been reasonable for QAS to consider the application. Ms Spencer says that she was denied the opportunity to have her exemption denial reviewed and that this was through no fault of her own.
    1. [33]
      The Respondent says that the correspondence to Ms Spencer informing her that her exemption application had been refused addressed Ms Spencer's concerns regarding risk and consultation, and her ability to provide free and informed consent. The Respondent says that Ms Spencer did not request an internal review of the decision to refuse her exemption application for over three months after the decision. The Respondent says that such a delay is unreasonable where Ms Spencer had been informed that she had seven days to seek a review.
    1. [34]
      Ms Spencer refers me to the matters she raised in her response to the show cause process and the reference to those matters in the decision letters she has received. I have read all of that material.
    1. [35]
      Ms Spencer says that the disciplinary appeal carries potentially devastating consequences for her as the Australian Health Practitioner Regulation Agency (AHPRA) requires thatmembers disclose if they have been disciplined. Ms Spencer says that for the first time in her career, when her next renewal is due, she will have to answer "yes" to the question asking if she has been disciplined.
    1. [36]
      Ms Spencer says that her response letter raised three key issues: a lack of consultation, a failure to adequately address her request for a risk assessment, and that due consultation and due process were not followed. Ms Spencer says that the QAS disciplinary finding letter failed to consider these three issues and that the issues were addressed as a part of her show cause against suspension without pay in the same letter.

    Consideration

    1. [37]
      Having considered all of the material available to me, I find that it was fair and reasonable for the decision-maker to substantiate Allegation 1.
    1. [38]
      The direction applied to Ms Spencer. Ms Spencer applied for an exemption from the direction and following consideration of her request, the application was denied. While Ms Spencer complains that the decision to refuse her exemption application was not fair and reasonable, she did not submit a request for an internal review of the decision within the prescribed timeline. In any case, the decision-maker addresses the vaccine exemption process in the letter

    …I have nonetheless considered the exemption process and specifically the consideration of your exemption application. I am of the view that the process was fair, equitable, and that your application was considered on its merits taking into account all of the information submitted by you. I am satisfied that your individual circumstances were taken into account when your exemption application was decided. I am satisfied that the exemption process was objective and carried out in a fair manner.

    1. [39]
      The decision-maker addressed matters raised by Ms Spencer in her submissions and determined that nothing Ms Spencer raised served to displace the allegation. I have considered those submissions and note Ms Spencer's concerns about risk assessment and consultation. These submissions are addressed below. There is nothing in the material before me to suggest that Ms Spencer's vaccine exemption request was not given due consideration or that her submissions regarding Allegation 1 were not properly considered.
    1. [40]
      As her application for an exemption from the vaccine was refused, Ms Spencer was required to receive the vaccination in accordance with the direction. It is uncontroversial that Ms Spencer has not received the vaccine. It was therefore open to the decision-maker to conclude that Ms Spencer had not followed the direction given to her to upload evidence of vaccination confirming that she had received the prescribed number of doses of the vaccine.

    Was it fair and reasonable to find that Allegation 1 gave rise to a disciplinary ground under s 187(1)(g)?

    1. [41]
      Ms Spencer says that in light of all of the documents and correspondence she has put forward in support of these appeal submissions, she has clearly made out her case that there was a reasonable excuse for her to not take the vaccine.
    1. [42]
      Ms Spencer also argues that the standard of her conduct was not sufficiently serious to warrant disciplinary action.
    1. [43]
      The Respondent says that on 14 March 2022, Ms Spencer responded to the letter dated 2 March 2022 regarding proposed disciplinary findings. In this response, Ms Spencer says that she is currently involved in an industrial dispute with the Department and that her representatives had commenced a Stage 2 grievance on her behalf. Ms Spencer said that the matter had been escalated to a Stage 3 grievance due to there being a "lack of consultation and failure to adequately address" her requests for a risk assessment. In that correspondence, Ms Spencer asked for a stay of the disciplinary process while the industrial dispute was afoot.
    1. [44]
      The Respondent says that HED 12/21 was based on the Chief Health Officer's directions regarding workers in healthcare settings and that noting the Chief Health Officer is the most senior medical officer in the State, HED 12/21 is both lawful and reasonable.[2]
    1. [45]
      Ms Spencer disputes that her place of work, being the call centre, falls into the category of a "healthcare setting".
    1. [46]
      The Respondent says that as Ms Spencer does not have an exemption from compliance with HED 12/21, and it is not in dispute that Ms Spencer has not received the vaccine, it is also not in dispute that Ms Spencer has failed to comply with HED 12/21.
    1. [47]
      The Respondent says that Ms Spencer received procedural fairness and had the opportunity to show cause before a decision on the allegation was made. Ms Spencer does not dispute that she has not been vaccinated against COVID-19 but attempts to dispute the reasonableness of the HED 12/21 vaccine and its application to her. The Respondent confirms that Ms Spencer is a person to whom the Directive applies.
    1. [48]
      With regard to consultation, the Respondent says that the Department complied with its obligations to consult workers and conduct risk assessments under the Work Health and Safety Act 2011. With reference to the decision of the full bench in Brassell-Dellow & Ors v State of Queensland (Queensland Police Service),[3]the Respondent says that 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. The Respondent says that the obligation to consult does not impose an obligation to consult with employees on an individual basis.[4]
    1. [49]
      In reply to this, Ms Spencer says that her decision to be represented by NPAQ resulted in her being left out of the consultation process and reduced her to a mere spectator which, to her mind, does not represent natural justice.
    1. [50]
      The Respondent says that Ms Spencer did not provide any evidence of a medical condition which meant she was unable to be safely administered the vaccines, nor did she provide any evidence of circumstances specific to her situation that meant she was unable to receive the COVID-19 vaccine.[5]
    1. [51]
      The Respondent says that Ms Spencer has a preference not to receive the vaccine and that vaccine hesitancy is not an exceptional circumstance, nor does it result in requiring compliance with HED 12/21 being unreasonable, having regard to the risk posed by COVID-19.[6]
    1. [52]
      With regard to Ms Spencer's submissions on the issue of consent, the Respondent says that Ms Spencer remains free to not receive a COVID-19 vaccine and that Ms Spencer has not been forced to receive a vaccine or deprived of free and informed consent. The Respondent says that Ms Spencer is not obliged to work for QAS.
    1. [53]
      Turning to Ms Spencer's submissions regarding her request for a risk assessment, the Respondent says that the COVID-19 vaccinations have been approved by ATAGI and the Therapeutic Goods Administration (TGA). The Respondent further submits that this approval is a matter of public record and is evidence of their safety and efficacy.[7]
    1. [54]
      QAS was not required to provide Ms Spencer with assurances concerning the safety or efficacy of the COVID-19 vaccines[8]and was not required to undertake its own risk assessment of the vaccines.[9]
    1. [55]
      The Respondent says that matters raised by Ms Spencer's representative in correspondence dated 17 February 2022 regarding a Stage 2 grievance were identical to matters raised in previous correspondence from her representative to various Hospital and Health Services in November and December 2021. The Respondent says that the Chief Human Resource Officer, Department of Health, responded to those matters on 13 December 2021 and to Ms Spencer's representative on 11 April 2022.

    Consideration

    1. [56]
      I understand that Ms Spencer believes that she had a reasonable excuse to not follow the direction to be vaccinated. I also understand that Ms Spencer remains aggrieved by the direction, maintains concerns about the vaccine, and believes that the Directive should not apply to her in her role. However, the fact remains that Ms Spencer has not followed the direction to be vaccinated.
    1. [57]
      While Ms Spencer remains concerned about risks, consultation and consent, I find that her concerns have been satisfactorily addressed by the Respondent. Consideration of these matters and the provision of detailed responses by the Respondent is evident in: correspondence of 21 October 2021 replying to correspondence from Ms Spencer regarding vaccine requirements for Queensland Health employees;[10]the letter of 20 December 2021 communicating the refusal of Ms Spencer's vaccine exemption application;[11]and the decision subject of this appeal dated 23 March 2022.
    1. [58]
      Ms Spencer may not agree with the responses to the matters she raised in her submissions, but this does not make those responses unreasonable.
    1. [59]
      In deciding not to be vaccinated, Ms Spencer has, without reasonable excuse, failed to follow a direction given to her by a responsible person. Ms Spencer has been given an opportunity to argue that she had a reasonable excuse for not following the direction.
    1. [60]
      Ms Spencer's concerns were addressed throughout the process. Ms Spencer has expressed a clear position throughout the process that she does not want to receive the vaccines and does not intend to be vaccinated. In doing so, Ms Spencer has created a situation where she is not able to attend her workplace and attend to her duties. In part, it is this impact on her capacity to do her job that makes the matter so serious.
    1. [61]
      In circumstances where it is clear that Ms Spencer has not complied with the direction and has not provided any reasonable excuse for not complying with the direction, it was open to the decision-maker to find that a discipline ground exists per s 187(1)(d) of the PS Act.

    Was the decision to suspend Ms Spencer without remuneration fair and reasonable?

    1. [62]
      Ms Spencer refers me to various appendices, show cause responses and correspondence from QAS which she has filed in support of her Appeal.
    1. [63]
      Ms Spencer says that while not reproduced in the form of submissions, her show cause response is still relevant and forms part of her Appeal.
    1. [64]
      Ms Spencer says that in order for her to maintain an income to pay her mortgage, QAS has allowed her to use her long service leave from 26 March 2022.
    1. [65]
      Ms Spencer says that in her show cause response regarding the suspension without remuneration, she raised: principles of natural justice; objective seriousness of the alleged conduct; personal interests for maintaining normal remuneration and human rights.
    1. [66]
      Ms Spencer says that the QAS decision on suspension without remuneration ignored the first three of the matters listed at [36] and did not consider them in the correct context. Ms Spencer says that the QAS letter considered these submissions in relation to whether there were grounds to take disciplinary action against her.
    1. [67]
      Ms Spencer says that QAS has combined the suspension without remuneration and the disciplinary decision which she submits are separate issues. For this reason, Ms Spencer says that the final decision was not adjudicated fairly.
    1. [68]
      Ms Spencer acknowledges that the decision-maker dealt with the matter of human rights but says that she does not agree with the justification.
    1. [69]
      Ms Spencer says that there is surely no natural justice to suspend an employee without pay before the process of determining whether the said employee should even be subject to a disciplinary process has run its course.
    1. [70]
      In response, the Respondent says that on 8 March 2022, Ms Spencer replied to the proposed suspension without pay. The Respondent says that Ms Spencer's correspondence stated that she did not want to receive vaccination due to the "associated risks" of COVID-19 vaccines. Ms Spencer also stated that the direction to receive vaccination caused her stress and financial hardship and was against her human rights. The Respondent says that it was evident from Ms Spencer's response that she continued to dispute whether HED 12/21 applied to her.
    1. [71]
      The Respondent cites its obligations under the Work Health and Safety Act 2011 and says that HED 12/21 is directed at meeting those obligations.
    1. [72]
      The Respondent says that Ms Spencer was afforded natural justice. In circumstances where Ms Spencer did not provide any evidence of circumstances specific to her which meant that she was unable to safely receive the current vaccines, the Respondent says that it was reasonable for the decision-maker to determine that Ms Spencer's reasons for not being vaccinated did not justify the approval of using public funds to pay Ms Spencer while she is suspended and unable to attend the workplace.
    1. [73]
      The Respondent says that it 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.
    1. [74]
      The Respondent acknowledges that suspension without pay will have a financial impact on Ms Spencer but says that this must be balanced against its obligation to ensure the effective, efficient, and appropriate use of public resources. The Respondent says that Ms Spencer is not precluded from seeking employment with another employer.
    1. [75]
      Given the nature of the discipline matter, the Respondent says that it was fair and reasonable for A/Deputy Commissioner Zsombok to consider it was not in the public interest for Ms Spencer to continue to be paid her normal remuneration in circumstances where Ms Spencer 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.
    1. [76]
      Ms Spencer says that her choice as to what medication she will take has left her on the brink of termination from her employment and put her ability to provide for her family and pay her bills and mortgage in jeopardy. Ms Spencer says that the whole process has placed her and her family under financial and emotional stress. Ms Spencer says that she has not been able to boost her take-home salary with extra shifts and that she has had to undertake regular counselling sessions to cope with the stress.
    1. [77]
      Ms Spencer seeks that the suspension without pay be reversed to a suspension with pay from 26 March 2022 until the matter concludes, and that the disciplinary finding be withdrawn.

    Consideration

    1. [78]
      The relevant Directive and legislation require the decision-maker to consider particular matters when determining to suspend an employee without remuneration.
    1. [79]
      Section 137(1) of the PS Act states:

    The chief executive of a department may, by notice, suspend a person from duty if the chief executive reasonably believes –

    1. (a)
      for a public service officer – the proper and efficient management of the department might be prejudiced if the officer is not suspended; or
    2. (b)
      for a public service employee – the employee is liable to discipline under a disciplinary law.
    1. [80]
      Section 137(4) of the PS Act states:

    A public service employee is entitled to normal remuneration during a suspension, unless –

    1. (a)
      the person is suspended under subsection (1)(b); and
    1. (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.
    1. [81]
      Ms Spencer had already been suspended with remuneration and the show cause process was in relation to a proposal to suspend her without remuneration. By the time the show cause process was in place regarding the suspension without remuneration, the decision- maker already had a reasonable belief that Ms Spencer was liable to discipline under a disciplinary law per s 137(1) of the PS Act.
    1. [82]
      This means that the focus was on s 137(4) of the PS Act and it was necessary for the decision-maker to consider whether it was not appropriate for the employee to be entitled to normal remuneration during the suspension when having regard to the nature of the discipline.
    1. [83]
      The key matters the decision-maker was required to consider were the nature of the disciplinary matter and the public interest of Ms Spencer remaining on suspension with pay.
    1. [84]
      I have reviewed the material available to me and find that Ms Spencer was provided with natural justice and procedural fairness. I understand that part of Ms Spencer's complaint is that the show cause process regarding the suspension without pay occurred alongside the disciplinary show cause process and that the matters were contained in the same correspondence. I note that there is nothing precluding a decision-maker from addressing a range of matters in the same correspondence. The suspension was dealt with in a separate part of the letter, and it was clear that the decision-maker was dealing with it as such. Ultimately, considering the "nature of the disciplinary matter" will of course involve the decision-maker in a consideration of the disciplinary finding and potentially, the submissions made with regard to that matter. No lack of procedural fairness arises from the matters being dealt with in the same correspondence.
    1. [85]
      Having established that the nature of the discipline matter involved a contravention of a lawful direction given to Ms Spencer by a responsible person on 20 December 2021, I find that it was open to the decision-maker to determine that the discipline matter is "of the utmost serious nature". As noted above, the nature of the disciplinary matter is even more serious when the contravention of the direction is such that it renders Ms Spencer completely unable to attend to her place of work to undertake her duties.
    1. [86]
      Some of Ms Spencer's submissions appeared to continue prosecuting an argument that the direction was not fair and that the direction should not apply to Ms Spencer. For the reasons given above, I find that Ms Spencer was given a reasonable and lawful direction and that the direction to receive the vaccination applied to her. The submissions I have focused on in this appeal are those relating to the impact of the suspension without pay on Ms Spencer.
    1. [87]
      There is no doubt that Ms Spencer will experience hardship as a result of the suspension without pay. I understand that Ms Spencer, like many people who have chosen to remain unvaccinated, has been confronted by a disciplinary allegation and suspension for the first time in her career and that this has caused her distress. However, Ms Spencer was well aware of the consequences of non-compliance with the direction as these were explained to her at each stage of the process. I also note that there is nothing precluding Ms Spencer from working elsewhere.
    1. [88]
      One of the show cause responses Ms Spencer provided during the disciplinary process specifically stated: "I simply did not want to take the covid vaccines with its associated risks". Ms Spencer also says, "Be assured that I did not take my decision lightly but I feel compelled to be true to my beliefs". These statements indicate to me that Ms Spencer has no intention of being vaccinated and therefore, there is no likelihood of her returning to work while the mandate remains in place.
    1. [89]
      In being true to her beliefs, Ms Spencer has put herself in a position where she is unable to attend her workplace. The decision-maker considered Ms Spencer's submissions regarding stress and financial hardship against his statutory obligation to manage public resources efficiently, responsibly and in a fully accountable way. Given the circumstances of this matter and having considered all of the material and submissions before me, I find that it was fair and reasonable for the decision-maker to determine that it was not in the public interest for Ms Spencer to continue being paid while unable to attend work due to her choice to not receive the vaccine.
    1. [90]
      The decision to suspend Ms Spencer without remuneration was fair and reasonable in the circumstances.

    Conclusion and Order

    1. [91]
      For the foregoing reasons, I make the following orders:

    PSA/2022/431

    1. The decision of 23 March 2022 substantiating Allegation 1 and making a finding that Ms Spencer was liable to discipline pursuant to section 187(1)(d) of the PS Act is confirmed.

    PSA/2022/449

    1. The decision of 23 March 2022 determining that pursuant to s 137(4) of the PS Act Ms Spencer should be suspended from duty without normal remuneration is confirmed.

    Footnotes

    [1] I note that both decisions were contained within the same letter dated 23 March 2022. For clarity, the decisions appealed against will be referred to throughout these reasons as "the decision".

    [2] Slykerman v State of Queensland (Queensland Health) [2022] QIRC 039, [36].

    [3] [2021] QIRC 356.

    [4] Ibid [124].

    [5] Radev v State of Queensland (Queensland Police Service) [2021] QIRC 414, [61].

    [6] Tilley v State of Queensland (Queensland Health) [2022] QIRC 002, [39].

    [7] Stevens v Epworth Foundation [2022] FWC 593, [19].

    [8] Ibid [35].

    [9] Kathryn Roy-Chowdhury v The Ivanhoe Girls' Grammar School [2022] FWC 849, [103].

    [10] Attachment 2 Respondent's submissions 18 May 2022.

    [11] Attachment 3 Respondent's submissions 18 May 2022.

    Close

    Editorial Notes

    • Published Case Name:

      Spencer v State of Queensland (Queensland Ambulance Service)

    • Shortened Case Name:

      Spencer v State of Queensland (Queensland Ambulance Service)

    • MNC:

      [2022] QIRC 266

    • Court:

      QIRC

    • Judge(s):

      Pidgeon IC

    • Date:

      15 Jul 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
    Kathryn Roy-Chowdhury v The Ivanhoe Girls' Grammar School [2022] FWC 849
    2 citations
    Jump To
    Cite 1 - [2022] FWC 849
    Cite 2 - [2022] FWC 849
    Radev v State of Queensland (Queensland Police Service) [2021] QIRC 414
    2 citations
    Jump To
    Cite 1 - [2021] QIRC 414
    Cite 2 - [2021] QIRC 414
    Slykerman v State of Queensland (Queensland Health) [2022] QIRC 39
    2 citations
    Jump To
    Cite 1 - [2022] QIRC 39
    Cite 2 - [2022] QIRC 39
    Stevens v Epworth Foundation [2022] FWC 593
    3 citations
    Jump To
    Cite 1 - [2022] FWC 593
    Cite 2 - [2022] FWC 593
    Cite 3 - [2022] FWC 593
    Tilley v State of Queensland (Queensland Health) [2022] QIRC 2
    2 citations
    Jump To
    Cite 1 - [2022] QIRC 2
    Cite 2 - [2022] QIRC 2

    Cases Citing

    No judgments on Queensland Judgments cite this judgment.

    1

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