Nicholson v State of Queensland (Department of Education)
[2022] QIRC 271
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Nicholson v State of Queensland (Department of Education)[2022] QIRC 271
- Add to List
Nicholson v State of Queensland (Department of Education)[2022] QIRC 271
Nicholson v State of Queensland (Department of Education)[2022] QIRC 271
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Nicholson v State of Queensland (Department of Education) [2022] QIRC 271 |
PARTIES: | Nicholson, Vanessa (Appellant) v State of Queensland (Department of Education) (Respondent) |
CASE NO: | PSA/2022/401 |
PROCEEDING: | Public Service Appeal – Appeal against suspension without pay decision |
DELIVERED EX TEMPORE ON: | 13 July 2022 |
MEMBER: | Dwyer IC |
HEARD AT: | Brisbane |
ORDER: |
|
CATCHWORDS: | PUBLIC SERVICE – APPEAL – appeal against a suspension without pay decision – where appellant employed by the State of Queensland as a Teacher – where Employment Directive 1/22 – COVID-19 Vaccinations ('the direction') required the appellant to receive the first vaccination dose by 17 December 2021 and the second dose by 23 January 2022 – where the appellant sought an exemption due to genuine religious belief – where exemption application not tendered in the manner described by the direction – where appellant was suspended with renumeration – where there was a subsequent decision to suspend the appellant without renumeration – where decision to suspend the appellant without pay was fair and reasonable – decision appealed against confirmed |
LEGISLATION: | Industrial Relations Act 2016 (Qld) ss 562B, 562C Public Service Act 2008 (Qld) ss 94, 137 Anti-Discrimination Act 1991 (Qld) ss 7, 107, 108 Employment Directive 1/22 – COVID-19 Vaccinations cl 4, 5 Directive 16/20: Suspension directive cl 6 Commission Chief Executive Guideline 01/17: Discipline |
CASES: | Goodall v State of Queensland (Unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018) Brandy v Human Rights and Equal Opportunity Commission [1995] 183 CLR 245 Higgins v State of Queensland (Queensland Health) [2022] QIRC 030 Casson v State of Queensland (Queensland Police Service) [2022] QIRC 113 George v Rockett [1990] HCA 26; (1990) 170 CLR 104 |
APPEARANCES: | Ms Rasmussen, paralegal of Sibley Lawyers and Ms Nicholson for the appellant Ms Graham and Ms Tamblyn of the State of Queensland (Department of Education) for the respondent |
Reasons for Decision (ex tempore)
Background
- [1]Ms Vanessa Nicholson is employed by the Department of Education Queensland, ('the department'), as a teacher. She has been employed by the department since approximately 1998. Most recently, Ms Nicholson has been employed at a primary school as a teacher.
- [2]On 16 December 2021, the Director-General of the department issued the Department of Education Employment Directive 1/22 – COVID-19 Vaccinations ('the direction'). Relevantly, the direction applied to workers who attend a high-risk setting as part of their role or the services they provide.
- [3]The direction defines 'high-risk setting' as, inter alia a primary school. It further defines 'worker' as inter alia a person employed at a high-risk setting. The direction clearly applied to Ms Nicholson. I note that a submission has been made that the direction did not apply to Ms Nicholson while she was on leave. I will deal with that later in these reasons.
- [4]The direction required workers whose role requires any attendance in a high-risk setting to have received a first dose of a COVID vaccine by 17 December 2021. It further required the worker show evidence of having received that first dose by no later than 7 January 2022. Ms Nicholson was on annual leave from 10 December 2021 to 19 January 2022.
- [5]Putting to one side the submission by Ms Nicholson that the direction did not apply to her while she was on leave, it is not controversial that Ms Nicholson did not comply with the direction and continues to have not complied.
- [6]As a consequence of having not received confirmation from Ms Nicholson that she had received her first dose on or before 17 December 2021, the department issued Ms Nicholson with a suspension notice on 10 January 2022. Relevantly, the suspension notice informed Ms Nicholson that firstly, her suspension was on normal remuneration and secondly (noting that she was on annual leave) the suspension would take effect from 20 January 2022 and remain in place 'at this time' until 20 April 2022.
- [7]Notably, Ms Nicholson did not challenge this decision, notwithstanding that she now says that the decision to suspend her was invalid because she says she was not required to comply while on annual leave. While such decision could not have been the subject of an appeal under the Public Service Act 2008 (Qld) ('the PS Act'), there was no attempt of any sort to challenge what was subsequently asserted to be an invalid suspension.[1]
- [8]The suspension notice further informed Ms Nicholson that the decision-maker was giving consideration to suspension without pay pursuant to section 137(4) of the PS Act. Ms Nicholson was invited to respond to this proposition by 17 January 2022, which she duly did in a comprehensive way through her representatives.
- [9]On 21 January 2022, Ms Nicholson submitted (through her representatives) a letter dated 6 December 2021 from a religious body confirming Ms Nicholson's membership of their community and confirming (in broad terms) that receiving a vaccine was inconsistent with their beliefs.
- [10]The department acknowledges this letter in their submissions as an exemption application on religious grounds though I note that the direction and the department had no facility for an exemption on religious grounds. Further, the application received via email on 21 January 2022 was simply an email attaching a letter from a religious organisation. It was not, in any way, compliant with the requirements for exemption applications prescribed by the direction.[2]
- [11]Following the response from Ms Nicholson regarding the consideration of suspension without remuneration, a decision was issued on 9 March 2022 noting Ms Nicholson's response and indicating that the decision-maker determined to suspend Ms Nicholson without pay. The decision cited multiple reasons by way of explanation for the decision, which included at item (f) on page 2:
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 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.
- [12]In her appeal notice, Ms Nicholson nominates the decision of 9 March 2022 as the decision that she seeks to be reviewed. I note that that decision deals exclusively with the decision to suspend Ms Nicholson without remuneration.
Statutory framework for public service appeals
- [13]Chapter 11 of the Industrial Relations Act 2016 (Qld) ('the IR Act') provides the Queensland Industrial Relations Commission ('the Commission') with jurisdiction to deal with appeals under the PS Act.
- [14]An appeal is a review of a decision. It is not a rehearing of the matter on its merits.[3] The word 'review' is not defined and accordingly it must take its meaning from the context in which it appears.[4] I am required to review the decision to determine whether the decision was fair and reasonable.[5]
- [15]The IR Act limits the powers of the Commission with respect to such appeals and in terms of the orders that can be made, namely:[6]
- (a)confirm the decision appealed against; or
- (b)for an appeal against a promotion decision—set the decision aside, and return the matter to the decision maker with a copy of the decision on appeal and any directions permitted under a directive of the commission chief executive under the Public Service Act 2008 that the commission considers appropriate; or
- (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.
Submissions of the parties
- [16]The parties in these proceedings filed written submissions in accordance with Directions issued on 31 March 2022. I have had full regard to those submissions. I do not propose to restate the submissions in full in these reasons but rather, I will focus on the salient portions.
Submissions of Ms Nicholson
- [17]Ms Nicholson's appeal notice sets out (at paragraphs 7 to 11 of part C), the grounds of her appeal. Notably, the grounds of her appeal are expressed in words to this effect:
- On 9 March 2022, Ms Nicholson was notified that she was to be suspended without pay. No reference was made to Ms Nicholson's religious exemption application, nor the department's previous decision to place Ms Nicholson on special leave until 20 April 2022;
- The decision to suspend her without renumeration in circumstances where her religious exemption application had not been considered was neither fair nor reasonable;
- The decision is not consistent with the Queensland Government's guidelines on when to suspend without pay;
- The decision places her in significant financial hardship for an allegation that does not constitute a criminal offence and does not bring the department into disrepute; and
- The suspension without pay is not in the public interest in the circumstances.
- [18]Notably, there is no pleading or submission in the appeal notice that the suspension notice of 10 January 2022 was invalid or that the direction did not apply to Ms Nicholson while she was on leave. This submission appears as something of an afterthought in Ms Nicholson's submissions filed on 22 April 2022.
- [19]In addition to that submission, Ms Nicholson further submits that the decision to suspend without pay was not consistent with what she refers to as 'Queensland Government guidelines' and further, that Ms Nicholson was denied natural justice because her religious exemption was not considered prior to her suspension without pay.
- [20]In her response submissions, Ms Nicholson goes further and says that the correspondence from the Director-General dated 3 December 2021 states that Ms Nicholson was not required to comply with a direction while on leave. Ms Nicholson further invokes a notion that she was on 'special leave' until 20 April 2022 and therefore, was not required to comply with the direction until after that date.
Submissions of the Department
- [21]The department's submissions largely set out the relevant chronological events and then comprehensively address the reasons of the decision-maker's decision on 9 March 2022.
- [22]The department's submissions do not materially depart from the reasons already given by the decision-maker on 9 March and relevantly conclude at paragraph (g) on page 4:
Given the nature of the discipline matter, it was fair and reasonable for Mr Millar to consider it was not in the public interest for Ms Nicholson to continue to be paid her normal renumeration in circumstances where Ms Nicholson has made a choice not to follow the direction given to her by her employer and was, therefore, unable to attend her normal work duties.
Consideration
- [23]The decision being reviewed in this appeal is the decision of 9 March 2022 to suspend Ms Nicholson without pay. For this reason, I do not intend to extensively deal with the submissions about the application of the direction while Ms Nicholson was on leave. Those submissions relate only to whether or not the decision of 10 January to suspend Ms Nicholson in the first place was valid.
- [24]Suffice to say, Ms Nicholson's submissions that the direction did not apply to her whilst on leave are plainly contradicted by the words of the direction itself.
- [25]Paragraph 4 of the direction contains the following passage:
The direction applies to all Department of Education workers who attend a high-risk setting as part of their role or the services they provide.
- [26]This is expressed in the broadest possible term such that the application of the direction relies on the role that you perform and the setting in which you perform it, not the actual performance of the role. Further, clause 5 of the direction provides:
All Department of Education workers whose role (employed or otherwise) requires any attendance in a high-risk setting must have received the first dose of a COVID-19 vaccine by 17 December 2021.
- [27]This equally picks up on the notion of the application captured by clause 4 i.e. it is the role that you are employed in and the location where you perform it, not the actual performance of the role that triggers the obligation to comply.
- [28]The interpretation of the directive promoted by Ms Nicholson in her submissions would be something of a nonsense in that it suggests the obligation to be vaccinated by 17 December 2021 does not arise until 20 January 2022 when Ms Nicholson was required to return for work.
- [29]Further, the assertion by Ms Nicholson's representatives that the email from the Director-General on 3 December 2022 'states' that an employee is not required to comply with the direction whilst on leave borders on ridiculous. The relevant passage of the email of 3 December 2021 relied on by Ms Nicholson's representative reads as follows:
Where an employee is on leave at the time when the vaccination requirements come into effect, they must have met the requirements before returning to the workplace and provide evidence of this prior to resuming their duties.
(Emphasis added)
- [30]The language of the email does not in the slightest way dilute the requirements to be vaccinated by 17 December 2021 at all. While it might contribute some degree of ambiguity around the date for notifying the department of vaccination, the email of the Director-General of 3 December 2021 firmly and clearly explains that the requirements of the direction must be met prior to resuming duties i.e. when the worker is on leave.
- [31]The email of the Director-General could not be clearer in confirming the application of the direction to Ms Nicholson during a period when she was on leave.
- [32]In the unlikely event that I am incorrect about this, even if it were accepted that Ms Nicholson was not required to comply until she was due to return to work, there is no doubt that she had not complied by that time. A show-cause process initiated 10 days prematurely does not produce any unfairness to her in my view.
- [33]But in any event these matters, as I have observed, are irrelevant to my consideration of this appeal which centres firmly on the decision of 9 March 2022.
- [34]For completeness, I would add that the suggestion that Ms Nicholson was on some type of 'special leave' that was a different or distinct form of leave from the suspension imposed can be entirely dispelled.
- [35]It was explained by the department at the hearing that the term 'special leave' as it appears in the pay record annexed to submissions in this matter[7] was a designation for her suspension. Further, the suspension notice itself, dated 10 January 2022, contains the following passage:
I have decided to suspend you from duty on normal renumeration. Noting the current periods of annual leave due to school holidays, your suspension will take effect from the start of business on 20 January 2022 and, at this stage, will remain in place until 20 April 2022.
(Emphasis added)
- [36]What is very clearly spelled out in the suspension letter of 10 January 2022 is that the leave designated to Ms Nicholson from 20 January is, in fact, her suspension. Further, whilst the date of 20 April is included as an outer limit, the words 'at this stage' indicate quite clearly that the outer limit is subject to change. There was no separate allocation of 'special leave' and 20 April 2022 was by no means a fixed end date.
- [37]Further, the question of the meaning of the term 'special leave' was discussed at the hearing of this matter and Ms Nicholson was directly given an opportunity to respond to my questions about her understanding of that term as it appeared in her payroll records. Ms Nicholson was at first evasive in responding to my questions and was subsequently unable to contradict the assertions of the department in any compelling or convincing way or establish that she had been given any other explanation consistent with the submissions now being made on her behalf.[8]
- [38]Turning to the submissions relevant to the decision of 9 March 2022, it is said that the decision was not fair or reasonable because inter alia it failed to have regard to Ms Nicholson's religious beliefs. Having regard to the decision-making process in this matter, it is relevant that the department had no facility for religious exemption and further, that Ms Nicholson did not tender an exemption application in the manner prescribed by the direction.
- [39]Further, I note that the letter from Ms Nicholson's religious community is dated 6 December 2021 i.e. well over one month prior to the date that she was first informed of the suspension of her employment. There is no explanation why it was not lodged before 10 January 2022 as part of a genuine exemption application. There is no explanation why it was not lodged on 17 January 2022 along with her response to the suspension letter to explain her non-compliance. There is no explanation why it suddenly materialised in an unsolicited fashion under cover of an email from Ms Nicholson's legal representatives on 21 January 2022. And yet Ms Nicholson now complains that the decision maker ought to have had regard to it and further, the failure to do so renders the decision unfair.
- [40]The failure by the decision-maker to have regard to Ms Nicholson's religious beliefs in circumstances where they could not exempt her anyway and when she did not promptly and properly make an application to be exempt or otherwise excused gives rise to no unfairness to her that I can appreciate. It most certainly does not render the decision unfair or unreasonable, especially when one considers that Ms Nicholson failed to include reference to her religious objections in her response to the suspension letter on 17 January 2022.
- [41]It is submitted that the decision was unfair because the decision-maker failed to have regard to Ms Nicholson's protected attributes under section 7 of the Anti-Discrimination Act 1991 (Qld) ('the ADA'). That might well be a complaint to be made under the ADA but even then, the exemption provisions of section 107 and 108 the ADA arguably negate any unfairness rather convincingly. Further, it is folly to conflate the notion of 'fair and reasonable' in the context of the considerations under the IR Act with 'discrimination' under the ADA, especially where exemptions apply under the ADA that e.g. may render a decision legitimate where it was otherwise 'unfair'.
- [42]The only genuine issue in this appeal when one peels back the layers of misconceived and superficial arguments pressed by Ms Nicholson is the fairness or otherwise of the decision-maker's exercise of his discretion pursuant to section 137(4) of the PS Act. Section 137(4) must be read in the context of section 137 more broadly, and also in the context of Directive 16/20: suspension directive ('the Directive'), and in particular, clause 6.
- [43]Section 137 relevantly provides:
- (1)The chief executive of a department may, by notice, suspend a person from duty if the chief executive reasonably believes—
- (a)for a public service officer—the proper and efficient management of the department might be prejudiced if the officer is not suspended; or
- (b)for a public service employee—the employee is liable to discipline under a disciplinary law.
…
- (4)A public service employee is entitled to normal remuneration during a suspension, unless—
- (a)the person is suspended under subsection (1)(b); 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.
(Emphasis added)
- [44]Clause 6 of the directive relevantly reads at clause 6.3:
6.3 In 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.
- [45]Clause 6 of the directive is non-exhaustive.
- [46]In the matter of Casson v State of Queensland[9], the Commission as currently constituted made the following observations:
[22] The suspension of an employee without remuneration will invariably produce significant detriment and disadvantage to the employee. It is a discretion that must be exercised with great care and attention to the rights of the employee, and with liberal doses of natural justice.
[23] Suspension of an employee without remuneration is a rare (if not unheard-of) practice in the private sector. Nevertheless, the PS Act contemplates suspension without remuneration at section 137 and in the Directive so it is clear that the legislature contemplated that there would be circumstances where it was justified.
[24] The prerequisites identified above are clearly intended to serve as safeguards against the misuse or abuse of the discretion found at section 137(4). The undisputed facts that sit in the background to these disciplinary proceedings are that Mr Casson was issued with a direction and that Mr Casson has clearly communicated that he will not comply with that direction.
- [47]There are clear similarities between the circumstances of Mr Casson and Ms Nicholson. The decision-maker only need have a reasonable belief an employee is liable to discipline. The notion of 'reasonable belief' does not require absolute certainty.[10] If it is established that Ms Nicholson has refused to comply with a lawful and reasonable direction then that is prima facie a form of misconduct that represents a serious breakdown in the employment relationship. In many cases, that will justify dismissal.
- [48]While not predetermining the disciplinary matter which may subsequently follow, it seems reasonable to me that the decision-maker was in a position (as at 9 March 2022) to reasonably anticipate the process might end in termination of Ms Nicholson's employment. Ms Nicholson's response on 17 January 2022 left no uncertainty as to her unwillingness to be vaccinated in accordance with the direction.
- [49]I note that recently, with the relaxation of the vaccine mandate, Ms Nicholson has been allowed to return to her employment. The fact that she has been able to return to work as a result of that relaxation does not alter the fact that in January 2022 and, indeed, still in March 2022, Ms Nicholson was not compliant with the directive.
- [50]In considering whether the decision was fair and reasonable, I am primarily concerned with the circumstances prevailing at the time of the decision and the information before the decision-maker. In March 2022, there was no clear or certain pathway out of the vaccine mandate and employees of the department at that time were still required to comply. It is entirely reasonable that the decision-maker would have anticipated delay in resolving Ms Nicholson's disciplinary process. At that time and in those circumstances, termination of her employment could reasonably have been anticipated. Indeed, Ms Nicholson remains liable to a sanction for her non-compliance regardless of the relaxation of the mandate.
- [51]In those circumstances I can easily appreciate how a decision maker might form a reasonable belief that Ms Nicholson was (and still may be) liable to termination of her employment given the undisputed facts establishing her non-compliance with the direction. I can equally appreciate that the continuation of her remuneration while the multiple layers of procedural fairness are exhausted (often for months and even years), might be regarded as an unjustifiable use of public funds.
- [52]The submissions of Ms Nicholson include a number of references to 'Queensland Government Guidelines'. I enquired during the course of the hearing as to whether I might be provided with a copy of something more than the simple table extracted in the attached show-cause response. I asked for this so that I could consider the submission of non-compliance in the context of the full document. None was provided before the hearing or with any of the written submissions. None was provided at the hearing.
- [53]It should not fall to the Commission to be tasked with retrieving documents relied on by parties in proceedings, especially where they form the basis of a ground of appeal. Nevertheless, reasonable attempts were made by my Associate and I to find the document identified in the submissions as the 'Queensland Government Disciplinary Guideline's or 'Guidelines' or 'Suspension Guidelines' as it is variously described in the submissions. Nothing bearing any resemblance to the extracted table that is contained in material filed by Ms Nicholson could be found. Nothing bearing any resemblance to documents with the titles referred to could be found.
- [54]I do not suggest for a moment that such document does not exist somewhere out there in the depths of the internet. I do not suggest Ms Nicholson or her representative have been dishonest or misleading. But no document of the type referred to could be found and I am unprepared to simply rely on a purported extract that was apparently cut and pasted into a submission authored by a representative of Ms Nicholson.
- [55]In circumstances where I am not able to consider the document in full, I am not inclined to give any weight to the submissions made about it. I would simply say that (as I did during the hearing) the document referred to is a guideline. Having regard to other guidelines issued by the Public Service Commission e.g. the Commission Chief Executive Guideline 01/17: Discipline the introductory language is instructive as to the force and effect of such guidelines:
This Guideline is an aid to managing disciplinary processes under the Public Service Act 2008 (PSA), Chapter 6 ('Disciplinary action for public service employees and former public service employees'). This Guideline is to be used as an adjunct to (that is, not instead of) the PSA. Its purpose is to only provide guidance. It does not bind or substitute for decision makers needingto properly exercise their managerial discretion in line with the PSA, in response to the uniqueset of facts of each actual case.
(Emphasis added)
- [56]To whatever extent there was a guideline as asserted by Ms Nicholson, and to whatever extent it was not complied with (and I cannot conclude that given the lack of information), that non-compliance does not, of itself, produce unfairness. This is particularly so in circumstances where, having regard to the terms of the PS Act and the directive, I am unable to identify unfairness arising by virtue of the application of those instruments.
- [57]Given the recent relaxation of the direction, it appears that Ms Nicholson may avoid an outcome that involves the termination of her employment however, she remains subject to liability for discipline given her failure to comply with the direction. In circumstances where Ms Nicholson remains non-compliant with the direction, it remains a matter of public interest that employees who have (arguably) disregarded lawful and reasonable directions without reasonable excuse should not be rewarded with payment whilst awaiting disciplinary processes to play out over weeks and possibly months.
- [58]I can appreciate in the circumstances how the decision-maker considered it was not appropriate to continue to renumerate Ms Nicholson.
- [59]Finally, Ms Nicholson has raised the impact of the decision on her financially. I accept that the decision has caused her some financial hardship however, the language of section 137(4) of the PS Act talks about appropriateness of suspending without renumeration in the very narrow context of the anticipated disciplinary action. Section 137(4) does not invite a broader consideration of personal factors unique to the suspended employee.
- [60]In all of those circumstances, I consider that the decision under review is fair and reasonable.
Order
- [61]In all of the circumstances, I make the following order:
- The decision appealed against is confirmed.
Footnotes
[1] Public Service Act 2008 (Qld) s 194(1)(bb); Higgins v State of Queensland (Queensland Health) [2022] QIRC 030, [50]-[52].
[2] Employment Directive 1/22 – COVID-19 Vaccinations, cl 8.
[3] Industrial Relations Act 2016 (Qld) s 562B; Goodall v State of Queensland (Unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018), 5.
[4] Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245, 261 (Mason CJ, Brennan and Toohey JJ).
[5] Industrial Relations Act 2016 (Qld) s 562B(3).
[6] Ibid s 562C.
[7] See screenshot of MyHR attached to Appellant’s submissions filed 22 April 2022.
[8] T 1-14 l 12 – T 1-15 l 40.
[9] Casson v State of Queensland (Queensland Police Service) [2022] QIRC 113.
[10] George v Rockett [1990] HCA 26; (1990) 170 CLR 104 (Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ).