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  4. Currie (Murray) v State of Queensland (Department of Education) - [2022] QIRC 269

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Currie (Murray) v State of Queensland (Department of Education)[2022] QIRC 269

Currie (Murray) v State of Queensland (Department of Education)[2022] QIRC 269

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Currie (Murray) v State of Queensland (Department of Education) [2022] QIRC 269

PARTIES:

Currie (Murray), Cathy

(Applicant)

v

State of Queensland (Department of Education)

(Respondent)

CASE NO:

PSA/2022/556

PROCEEDING:

Appeal against a suspension without pay decision

DELIVERED ON:

18 July 2022

HEARING DATE:

On the papers

MEMBER:

Pidgeon IC

HEARD AT:

Brisbane

ORDER:

The decision appealed against is confirmed

CATCHWORDS:

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

LEGISLATION AND

INSTRUMENTS:

COVID-19 Vaccination Requirements for Workers in a high-risk setting Direction

Department of Education Employment Direction 1/21 – COVID-19 Vaccinations cls 2, 3, 5, 6, 8, 9

Directive 16/20 Suspension cl 5, 6

Industrial Relations Act 2016 ss 562B, 562C, 564

Public Service Act 2008 ss 137, 187, 194

Work Health and Safety Act 2011

CASES:

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

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

Kathryn Roy-Chowdhury v The Ivanhoe Girls' Grammar School [2021] 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

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

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

Reasons for Decision

Background

  1. [1]
    Ms Cathy Currie (Murray) is a Deputy Principal (Junior Secondary) at North Lakes State College.
  2. [2]
    On 16 December 2021, in accordance with the Department of Education Employment Direction 1/21 – COVID-19 Vaccinations (Direction 1/21), the Department directed Ms Currie to be vaccinated against COVID-19.  Ms Currie did not comply with Direction 1/21.  Ms Currie was initially suspended with pay and following a show cause process, on 29 April 2022, Mr David Miller, Executive Director, Early Learning and Development, Department of Education, informed Ms Currie that she would be suspended from duty without pay.
  3. [3]
    Ms Currie appeals the suspension without pay decision.
  4. [4]
    Ms Currie filed her appeal against the decision on 5 May 2022, within 21 days of the decision.  I am satisfied that Ms Currie is a person who can appeal,[1] is appealing an appealable decision,[2] and has filed her appeal within time.[3]

The Direction and the Suspension

Direction 1/21

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

3.  Purpose

In recognition of the high risk of transmission of the COVID-19 virus, for the protection of vulnerable persons and that a sudden reduction in available workforce would significantly affect the continuity of education services (among others) on Saturday 11 December 2021 the COVID-19 Vaccination Requirements for Workers in a high-risk setting Direction – Queensland Health (CHO Direction) was published re vaccination of workers in high-risk settings including:

  • schools and outdoor education facilities;
  • other education facilities, including TAFE, that are co-located with a school;
  • outside school hours care and vacation care; and
  • kindergartens, registered and licensed early childhood settings and family day-care providers.

The purpose of this direction is to outline the COVID-19 vaccination requirements for existing and prospective Department of Education workers (excluding OIR) who attend a high-risk setting as part of their role or the services they provide.

  1. [7]
    It is clear from both cl 3 and the definition of "high-risk setting" provided in Direction 1/21 that a school is a "high-risk setting" for the purposes of Direction 1/21.
  2. [8]
    Clause 5 of Direction 1/21 sets out the COVID-19 vaccination requirements for Department of Education workers whose role requires any attendance in a high-risk setting. Clause 5(d) requires that a worker "as soon as reasonably practicable and in any event before attending a high-risk setting on 24 January 2022, show evidence of having received the prescribed number of Covid-19 vaccines".  Clause 6 lists acceptable evidence of a COVID-19 vaccine and says that "evidence of vaccination is to be provided to the Department of Education through the Department of Education COVID-19 Vaccination Declaration survey.”
  3. [9]
    Clause 8 provides information regarding application for exemption due to medical contraindication or participation in a clinical trial.  It states that "Where an exemption is granted the Department will conduct appropriate risk assessments and consult with those affected in relation to appropriate control measures." 
  4. [10]
    Clause 9 of Direction 1/21 provides that from 17 December 2021, "unvaccinated workers without a qualifying exemption must not enter a high-risk setting unless there is an emergency or permission is granted in accordance with…” the CHO Directions in relation to Critical Workforce Shortages or Critical Support Needs.
  5. [11]
    The Respondent advises that on 3 January 2022, Ms Currie wrote to the Department requesting to consult about vaccination requirements.[5] The letter appointed QTeachers First Inc, trading as Teachers' Professional Association of Queensland to represent Ms Currie's industrial interests.  In her letter, Ms Currie raised further safety concerns; requested a risk assessment; and advised that without the appropriate risk assessment and consultation, she thought Direction 1/21 may be unlawful.
  6. [12]
    Ms Currie was on Long Service Leave during Term 1 (20 January 2022 to 1 April 2022).  The Respondent advises that on 6 January 2022, Ms Murray emailed the Department's Staff Vaccination Status mailbox confirming she had completed the online survey regarding her vaccination status.[6]  This email said:

To Whom it May Concern

I have recently completed the online survey in regards to Vaccination Status as requested.  I have ticked 'not vaccinated' as there does not include an option that is relevant to my situation.  Up until this point I have declined the offer of the irreversible invasive medical procedure as my repeated requests for a Risk Assessment from my Line Manager, which would allow me to make an INFORMED decision, is yet to be fulfilled.

Cathy Currie

  1. [13]
    Ms Currie did not apply for an exemption from Direction 1/21.  I am satisfied that Ms Currie is a person covered by Direction 1/21.
  2. [14]
    On 24 March 2022, Mr Miller wrote to Ms Currie to request that she provide a copy of her vaccination status prior to the conclusion of her leave.[7]  On 1 April 2022, Ms Currie sent an email to the Staff Vaccination Status mailbox stating that she had requested a risk assessment on three separate occasions.  Ms Currie said that she remained unvaccinated and that because she was still awaiting a risk assessment, she could not "give informed consent".[8]
  3. [15]
    On 19 April 2022, Mr Miller wrote to Ms Currie and advised that Department of Education records indicated that she may be in breach of the COVID-19 Vaccinations Direction which required Ms Currie to have the prescribed number of doses of the vaccine and provide evidence of this before attending a high-risk setting. [9]  Mr Miller stated that if that was the case and Ms Currie was not compliant with the Direction, she was not lawfully able to attend the workplace to carry out and perform the functions of her role due to the operation of the COVID-19 Vaccination Requirements for Workers in a high-risk setting Direction combined with her breach of the Direction. In this correspondence, Mr Miller also advised Ms Currie that she would be suspended on normal remuneration and provided her with seven days to respond as to why she should not be suspended without pay.
  4. [16]
    As I have done in previous appeals of this nature, I am approaching this appeal on the basis that Direction 1/21 is lawful and reasonable.  The Chief Health Officer is the most senior medical officer in the State and made the Direction regarding workers in high-risk settings which took effect on 11 December 2021.  Once that Direction was made and identified various education settings as "high-risk settings", it was reasonable for the Department to implement Direction 1/21 to ensure that it was both complying with the Chief Health Officer Direction and meeting its duty of care to staff, students and other members of school communities.[10]

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

  1. [17]
    Clause 5 of Suspension Directive 16/20 sets out suspension considerations and references s 137 of the Public Service Act 2008 (PS Act) which itself provides that the chief executive of a department may, by notice, suspend a person from duty if the chief executive reasonably believes that a public service employee is liable to discipline under a disciplinary law.  Section 137(3) requires the chief executive to consider all reasonable alternatives before suspending an employee.  Where the employer determines that the employee could not undertake alternative options, the employee needs to be provided with a reason why the employee could not undertake alternative options.[11]
  2. [18]
    Clause 6 of the Directive deals with suspension without remuneration.  Clause 6.3 states:

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

  1. (a)
    the nature of the discipline matter
  2. (b)
    any factors not within the control of the agency that are preventing the timely conclusion of the discipline process
  3. (c)
    the public interest of the employee remaining on suspension with remuneration.
  1. [19]
    Clause 6.4 states that a decision to suspend an employee without remuneration is subject to the principles of natural justice. 

Suspension without pay

  1. [20]
    On 29 April 2022, David Miller, Executive Director, Early Learning and Development, Department of Education, wrote to Ms Currie to inform her that having considered her response, he had determined that "it is not appropriate for you to receive normal pay during your suspension and that you are suspended from duty without pay."  Mr Miller provided the following reasons for his decision:
  1. (a)
    The Direction has been adopted state-wide for the protection of vulnerable persons and where a sudden reduction in available workforce would significantly affect the continuity of education services (among others).  Unless an individual has a diagnosed medical contraindication or other qualifying exception circumstance, the Direction is a reasonable one.
  2. (b)
    The information available to me indicates that you may have failed to comply with the Direction, and the length of time it may take you to comply with the Direction is outside of the department's control.
  3. (c)
    I have previously considered all reasonable alternatives, including alternative duties or adjustments and remain of the view that there is no reasonable alternative role or reasonable adjustments which appropriately manage the risk that arises due to your non-compliance with the Direction, particularly in circumstances where your role requires attendance in a high risk setting such as a school or early childhood setting.
  4. (d)
    You have had sufficient time to engage with the requirements of the Direction. The department has engaged with you on a number of occasions about what was required of you to comply with the Direction.
  5. (e)
    I am not in receipt of any material, through your response to me, the Department's vaccination status survey or otherwise, that you have been vaccinated.  Nor am I in receipt of information that you have applied for or received an approved exemption due to medical contraindication or exceptional circumstances.
  6. (f)
    Given your failure to comply with the Direction, the time you have had to engage with and comply with the Direction, the engagement and consultation undertaken by the department, the nature of the discipline to which you may be liable and the time it may take to conclude the disciplinary process, I have determined it is not a responsible or appropriate use of public funds to allow you to continue to be paid while this process is underway.

Ms Currie's Reasons for Appeal

  1. [21]
    Ms Currie's appeal notice lists her reasons for appealing the decision.  I summarise her reasons here:

Adequacy of reasons

  • Firstly, Ms Currie disputes that her show cause letter was given careful consideration, as stated by Mr Miller in his decision. Rather, she claims that Mr Miller's reasons were of a generic nature with no reference to her individual circumstances.
  • In Ms Currie's view, Mr Miller's decision failed to address her personal situation and respond to the questions raised in her show cause letter.

Consultation and risk assessment

  • In her appeal notice, Ms Currie refers to the Department's position that she is not willing and/or able to comply with the directive to be vaccinated. In response to this, Ms Currie states that she has "never been non-compliant with a direction".
  • To comply with the Direction, Ms Currie claims to require meaningful consultation and says she has requested a risk assessment from her Principal and the Department of Education on many occasions.  Ms Currie says this is crucial to her ability to give informed consent.
  • Ms Currie further submits that her employer is bound to complete a risk assessment in accordance with the relevant workplace health and safety laws including satisfactory consultation in line with the Enterprise Bargaining Agreement.
  • Ms Currie says that there has been no consultation at all from the Department.
  • Ms Currie claims that this is at odds with "the BHP case" where the "court stated it is fundamentally important for the employer to be able to demonstrate that genuine consultation has occurred."

Inability to give informed consent

  • Ms Currie claims that, based on her personal medical circumstances, she visited two General Practitioners to request a temporary exemption from vaccination while waiting for the risk assessment. Ms Currie says that these requests were denied "as Doctors have been instructed they are not allowed to give exemptions."
  • In addition, Ms Currie says that her doctor's practice will not vaccinate people who cannot give informed consent. Ms Currie further claims that she cannot give informed consent until she has the information that would be included in the risk assessment.

Reasonable alternatives

  • Ms Currie believes reasonable alternatives to suspension without pay were not considered.
  • Ms Currie suggests that she could have taken on the Duty Deputy role as she submits that it could be successfully completed from home.
  1. [22]
    Furthermore, Ms Currie specifically states that the matters raised in her show cause letter were not addressed in the decision.  I have read Ms Currie's show cause response and note that in that letter Ms Currie, in summary:
  • States that she is unsettled and distressed by the threat of disciplinary action.
  • Provides background about her long career and exemplary record with the Department of Education.
  • Conveys her disappointment that she has not had an opportunity to engage in meaningful consultation with the Department.
  • States that she has requested a risk assessment outlining all relevant dangers and/or potential risks so that she may provide informed consent and that her requests have been denied each time.
  • Believes her employer is bound to complete a risk assessment in accordance with the relevant workplace health and safety laws, including satisfactory consultation in line with the Enterprise Bargaining Agreement.
  • Says she is not an 'anti-vaxxer' and has received all the usual vaccinations for herself and her family.
  • Says she has consulted with various doctors seeking an exemption, but her request was denied.
  • Provides information about informed consent from the Australian Immunisation Handbook 2018.
  • States the information she believes should be included in a comprehensive risk assessment.
  • Claims that during her absences, she has taken the opportunity to access the Department's Employee Assistance Service and has found counselling helpful to support her mental health.
  • States that she is currently healthy, ready, willing and able to return to work and perform all of her roles and responsibilities.

Respondent's Submissions Addressing the Appeal Notice

  1. [23]
    The Respondent submits that the decision to suspend Ms Murray without pay was fair and reasonable.
  2. [24]
    The Respondent says that the Department was obliged to comply with public health directions issued by the Chief Health Officer which applied to departmental locations. The Respondent also submits that it was not required to provide Ms Currie with consultation on the scientific basis upon which Direction 1/21 was made and that reliance on the CHO Direction was in itself sufficient evidence that there was a scientific basis for the requirement to be vaccinated.
  3. [25]
    The Respondent says that it is clear from Ms Currie's submissions that she has a preference against receiving the vaccine.  With regard to Ms Currie's concerns about the harm that may be caused by the vaccine and the requirement of a risk assessment, the Respondent says that these matters can be categorised as vaccine hesitancy. 
  4. [26]
    The Respondent says that vaccine hesitancy does not result in requiring compliance with Direction 1/21 being unreasonable, having regard to the risk posed by COVID-19.[12]
  5. [27]
    Turning to Ms Currie's ground of appeal regarding consultation, the Respondent says that it complied with its obligations under the Work Health and Safety Act 2011 (WHS Act) to consult with employees and with the registered unions representing employees in relation to the introduction of the vaccine mandate.  The Respondent says that the WHS Act requires a duty to consult so far as is reasonably practicable and that what is reasonably practicable will depend on the individual circumstances including the number of people in the workforce.  The Respondent says that registered unions may negotiate with employers, not only on behalf of their members but also on behalf of workers who are eligible for membership and that where unions agree with a directive, "consultation reached the level where the directive was not a matter of contention".[13]
  6. [28]
    The Respondent says that there is no lawful basis upon which Ms Currie could request access to a risk assessment undertaken by the Department in relation to vaccines.[14]
  7. [29]
    The Respondent says that the approval of COVID-19 vaccinations by the Therapeutic Goods Administration and the Australian Technical Advisory Group on Immunisation is a matter of public record and evidence of their safety and efficacy.[15]  The Respondent also claims that the Department was not required to provide Ms Currie with assurances about the safety and efficacy of the vaccines[16] or do its own risk assessment of the vaccines.[17]
  8. [30]
    The Respondent says that Ms Currie has not been deprived of free and informed consent.[18] Further, the Respondent says that Ms Currie is not obliged to work for the Department of Education.
  9. [31]
    The Department notes that while Ms Currie refers to her personal medical circumstances, the Department has no record of Ms Currie applying for an exemption per Direction 1/21. The Department says that Ms Currie has provided no evidence of circumstances specific to her which meant that she was unable to be safely administered the current vaccines.[19]
  10. [32]
    In the circumstances, the Respondent says that it was open to Mr Miller to conclude that Ms Currie's reasons for not complying with Direction 1/21 did not justify the approval of using public funds to pay Ms Currie while she is suspended and unable to work in a school.
  11. [33]
    The Respondent says that Ms Currie was provided with procedural fairness and an opportunity to show cause as to why she should not be suspended without pay.
  12. [34]
    The Respondent submits that Mr Miller considered all reasonable alternatives, including alternative duties or adjustments available.  Ms Currie is a Deputy Principal and in circumstances where education settings had been deemed high-risk locations, which she would be unable to enter from 17 December 2021, the Respondent says it was reasonable for Mr Miller to determine there was no reasonable alternative which appropriately managed the risk arising from Ms Currie's non-compliance with the Direction.[20]
  13. [35]
    The Respondent acknowledges that the suspension without pay will have a financial impact on Ms Currie but says that this is only one factor to be considered.[21]  The Respondent says that the financial impact on Ms Currie 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.  The Respondent also notes that Ms Currie is not precluded from seeking employment with another employer.[22]
  14. [36]
    The Respondent says that Mr Miller considered Ms Currie's human rights and determined that there was no less restrictive and reasonably available way to achieve the purpose of complying with Direction 1/21.
  15. [37]
    The Respondent says that Ms Currie has made a choice not to follow the direction given to her by her employer and this has meant that she is unable to attend to her normal duties.  In these circumstances, the Respondent says that it was fair and reasonable for Mr Miller to consider it was not in the public interest for Ms Currie to continue to be paid her normal remuneration.[23]

Ms Currie's Submissions in Reply

  1. [38]
    In submissions in reply to the Respondent's submissions, Ms Currie maintains that "this appeal is solely dealing with The Department of Education's refusal to engage in any consultation, nor provide a risk assessment, before suspending" her without remuneration.
  2. [39]
    Ms Currie's reply submissions largely reflect the matters she raised in her appeal and show cause response. Where the submissions are similar, I have noted them but do not intend to outline them here.
  3. [40]
    Ms Currie confirms that she did not apply for an exemption from the vaccine direction on medical grounds.
  4. [41]
    Ms Currie reiterates that a variety of the roles and responsibilities of a Deputy Principal can be performed off-campus.
  5. [42]
    Ms Currie finds it offensive for the Respondent to say that it is evident from the material she submitted that she has a preference against receiving the vaccine. Ms Currie says that she has never suggested this.
  6. [43]
    Ms Currie notes that while the workplace is a high-risk setting and she cannot attend the workplace while unvaccinated, she is able to attend as a visitor or a parent.  Ms Currie also notes that she is personally aware of colleagues at her workplace who have not yet received their booster and are therefore "overdue" and not fully vaccinated.

Appeal Principles

  1. [44]
    Section 562B(3) of the Industrial Relations Act 2016 (IR Act) provides that the appeal is to be decided by reviewing the decision appealed against and that "the purpose of the appeal is to decide whether the decision appealed against was fair and reasonable".
  1. [45]
    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.
  1. [46]
    A public service appeal is not an opportunity for a fresh hearing, but a review of the decision arrived at by the decision maker. My task in deciding this appeal is to review the decision received on 17 February 2022 and decide whether that decision was fair and reasonable.
  1. [47]
    Findings made by the Department which were reasonably open to it and based on the relevant materials or evidence should not be expected to be disturbed on appeal.

Consideration

Was it open to Mr Miller to form a reasonable belief that Ms Currie may be liable for discipline?

  1. [48]
    The decision before me does not include a disciplinary finding against Ms Currie.
  2. [49]
    The decision to suspend an employee can be made on the basis of a reasonable belief that the employee may be liable for discipline under a disciplinary law.
  3. [50]
    Grounds for discipline are set out at s 187 of the PS Act. Section 187(1)(d) establishes a ground of discipline where an employee has "contravened without reasonable excuse, a direction given to the employee as a public service employee by a responsible person".  Ms Currie was directed to be vaccinated by way of Direction 1/21. 
  4. [51]
    As has been discussed above, Ms Currie attended on her doctor with a view to seeking an exemption and this was denied.  Ms Currie did not apply for an exemption from the Direction on the grounds of a medical contraindication.  As a result, the Direction applied to Ms Currie.  It is clear from the submissions before me that Ms Currie did not receive the vaccine as directed.
  5. [52]
    I note that Ms Currie seeks to draw attention to her colleagues who she says are not fully vaccinated.  That is not a matter for this appeal.  Further, Ms Currie's remarks regarding visitors or parents not needing to be vaccinated to enter school grounds are not relevant to the Direction made to her as an employee.
  6. [53]
    Most of Ms Currie's submissions go to whether the issues she raises regarding consultation, risk assessments and informed consent mean that she had a reasonable excuse for not following the Direction.  Ms Currie will have the opportunity to make arguments as to whether it was reasonable for her to refuse to follow the Direction to be vaccinated in the event that a disciplinary show cause process is commenced against her.
  7. [54]
    However, as has been discussed extensively in the Respondent's submissions with reference to a number of other recent decisions of this Commission (including my own consideration of a similar matter in Thorley):[24] there is no requirement for Ms Currie to be provided with a risk assessment regarding the vaccine direction; the Direction was lawful and reasonable; the safety of the vaccines is a matter of public record; and the Department of Education undertook consultation with the relevant registered union. 
  8. [55]
    In the circumstances, it was open to Mr Miller to form a reasonable belief that Ms Currie may be liable for discipline under a disciplinary law, as she has not complied with a direction given to her by a responsible person.

Was it reasonable for Mr Miller to consider that there were no reasonable alternatives, including reasonable duties, a temporary transfer or another alternative working arrangement, available to Ms Currie?

  1. [56]
    Ms Currie has questioned whether Mr Miller considered all possible alternatives before deciding to suspend her without pay.  In the suspension from duty letter Ms Currie received dated 19 April 2022, Mr Miller addressed the matter of alternative duties and said:

Before making this decision, I considered whether there were alternatives available, including alternative duties, a temporary transfer (either in your current workplace or another workplace) or another alternative working arrangement.

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

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

  1. [57]
    Ms Currie is a Deputy Principal.  While she states that there are aspects of her role that can be performed from home, the delegate determined that her role could not be undertaken elsewhere.  It was not for the Department to require the school to restructure the way that work would be undertaken by the members of the administration team who received the vaccine to accommodate member/s of the team who did not follow the Direction. While aspects of Ms Currie's role may be undertaken remotely, the fact remains that she is Deputy Principal and in circumstances where education settings had been deemed high-risk locations which she would be unable to enter from 17 December 2021, it was reasonable for Mr Miller to determine that there was no reasonable alternative role or reasonable adjustments available to accommodate Ms Currie following her choice to not follow the Direction.

Was it reasonable for Mr Miller to consider it was not appropriate for Ms Currie to be entitled to normal remuneration during the suspension having regard to the nature of the discipline to which it was believed Ms Currie was liable?

  1. [58]
    As outlined at [35] above, the Department is required to balance the financial impact on Ms Currie by suspending her without pay against its obligation to ensure the effective, efficient and appropriate use of public resources.
  2. [59]
    Direction 1/21 mandates the COVID-19 vaccine for employees.  It is clear that if an employee does not have a medical exemption and does not take steps to comply with the direction to be vaccinated, the employee has exercised a choice to refuse the Direction.  The consequences of that choice are made clear at cl 9 of Direction 1/21 which states that unvaccinated workers may not enter a high-risk setting.  Ms Currie has made submissions regarding her exemplary record and vast experience over 33 years in education.  It is clear that Ms Currie is distressed to find herself in this situation. However, Ms Currie's length of service and seniority is also such that she would be well aware of the consequences of not following the Direction. 
  3. [60]
    Ms Currie's reply submissions state:

In my thirty-three years in education I have strove to fashion the developing minds of students and encourage them to source information which allows them to critically analyse and ask questions – so in turn they are best equipped to make decisions and draw conclusions. Yes, when I employ such actions I find myself suspended. 

  1. [61]
    This further demonstrates to me that Ms Currie is aware that the choice she has made to continue requesting a risk assessment and consultation, has ultimately led to her suspension.  Given the nature of the discipline matter, it was fair and reasonable for Mr Miller to consider it was not in the public interest for Ms Currie to continue to be paid her normal remuneration. 

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

  1. [62]
    The evidence before me demonstrates that Ms Currie was provided with the opportunity to show cause regarding the proposal to suspend her without pay.  I have read Ms Currie's show cause response and it is discussed in this decision.
  2. [63]
    There is no evidence before me that Ms Currie was not afforded natural justice throughout the process.
  3. [64]
    After considering the written and oral submissions of the parties, I have determined that the decision of Mr Miller on 29 April 2022 to suspend Ms Currie without pay was fair and reasonable.

Order

  1. The decision appealed against is confirmed.

Footnotes

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

[2] Ibid s 196(bb).

[3] Industrial Relations Act 2016 s 564.

[4] Attachment 1, Respondent submissions 8 March 2022.

[5] Attachment 1, Respondent submissions 24 May 2022.

[6] Attachment 2, Respondent submissions 24 May 2022.

[7] Attachment 3, Respondent submissions 24 May 2022.

[8] Attachment 4, Respondent submissions 24 May 2022.

[9] Attachment 5, Respondent submissions 24 May 2022.

[10] Thorley v State of Queensland (Department of Education) [2022] QIRC 133, [13] ('Thorley').

[11] Directive 16/20 Suspension cl 5.2(c).

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

[13] Brassell-Dellow and Others v State of Queensland (Queensland Police Service) [2021] QIRC 356, [129].

[14] Slykerman v State of Queensland (Queensland Health) [2022] QIRC 039, [35].

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

[16] Ibid [35].

[17] Kathryn Roy-Chowdhury v The Ivanhoe Girls' Grammar School [2021] FWC 849, [103].

[18] Higgins v State of Queensland (Queensland Health) [2022] QIRC 030, [61].

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

[20] Thorley (n 10) [85].

[21] Tilley (n 12) [47].

[22] Ibid [48].

[23] Thorley (n 10) [94].

[24] Thorley (n 10) [47]-[66].

Close

Editorial Notes

  • Published Case Name:

    Currie (Murray) v State of Queensland (Department of Education)

  • Shortened Case Name:

    Currie (Murray) v State of Queensland (Department of Education)

  • MNC:

    [2022] QIRC 269

  • Court:

    QIRC

  • Judge(s):

    Pidgeon IC

  • Date:

    18 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
2 citations
Jump To
Cite 1 - [2021] QIRC 356
Cite 2 - [2021] QIRC 356
Higgins v State of Queensland (Queensland Health) [2022] QIRC 30
2 citations
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Cite 1 - [2022] QIRC 30
Cite 2 - [2022] QIRC 30
Kathryn Roy-Chowdhury v The Ivanhoe Girls' Grammar School [2021] FWC 849
2 citations
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Cite 1 - [2021] FWC 849
Cite 2 - [2021] FWC 849
Radev v State of Queensland (Queensland Police Service) [2021] QIRC 414
2 citations
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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
Thorley v State of Queensland (Department of Education) [2022] QIRC 133
5 citations
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Cite 1 - [2022] QIRC 133
Cite 2 - [2022] QIRC 133
Cite 3 - [2022] QIRC 133
Cite 4 - [2022] QIRC 133
Cite 5 - [2022] QIRC 133
Tilley v State of Queensland (Queensland Health) [2022] QIRC 2
3 citations
Jump To
Cite 1 - [2022] QIRC 2
Cite 2 - [2022] QIRC 2
Cite 3 - [2022] QIRC 2

Cases Citing

Case NameFull CitationFrequency
Allison v State of Queensland (Department of Education) [2024] QIRC 2632 citations
Bailey v State of Queensland (Department of Education) [2024] QIRC 2182 citations
Bakhash v State of Queensland (Department of Education) [2022] QIRC 3622 citations
Beber v State of Queensland (Department of Education) [2022] QIRC 2952 citations
Bowcock v State of Queensland (Department of Education) [2024] QIRC 282 citations
Dau v State of Queensland (Department of Education) [2025] QIRC 821 citation
Davenport v State of Queensland (Department of Education) [2024] QIRC 2063 citations
Gatongi v State of Queensland (Department of Education) [2024] QIRC 2332 citations
Meni v State of Queensland (Department of Education) [2023] QIRC 181 citation
Nicolson v State of Queensland (Department of Education) [2025] QIRC 722 citations
Parry v State of Queensland (Department of Education) [2024] QIRC 422 citations
Perichon v State of Queensland (Department of Education) [2022] QIRC 4952 citations
Radanovic v State of Queensland (Department of Education) [2024] QIRC 2251 citation
Rossiter v State of Queensland (Department of Education) [2024] QIRC 252 citations
Rowe v State of Queensland (Department of Education) [2024] QIRC 2482 citations
Saba v State of Queensland (Department of Education) [2022] QIRC 3842 citations
Sankey v State of Queensland (Department of Education) [2024] QIRC 1972 citations
Smith v State of Queensland (Department of Education) [2024] QIRC 2432 citations
Steenson v State of Queensland (Department of Education) [2024] QIRC 2421 citation
Thorley v State of Queensland (Department of Education) [2024] QIRC 262 citations
Tilley v State of Queensland (Queensland Health) [2023] QIRC 2621 citation
Tilley v State of Queensland (Queensland Health) (Disciplinary Decision) [2024] QIRC 2521 citation
Vaughan v State of Queensland (Department of Education) [2025] QIRC 751 citation
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