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  4. Beber v State of Queensland (Department of Education) - [2022] QIRC 295

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Beber v State of Queensland (Department of Education)[2022] QIRC 295

Beber v State of Queensland (Department of Education)[2022] QIRC 295

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Beber v State of Queensland (Department of Education) [2022] QIRC 295

PARTIES:

Beber, Sabrina

(Applicant)

v

State of Queensland (Department of Education)

(Respondent)

CASE NO:

PSA/2022/566

PROCEEDING:

Appeal against a suspension without pay decision

DELIVERED ON:

5 August 2022

MEMBER:

Pidgeon IC

HEARD AT:

On the papers

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 appellant was suspended without pay – whether the decision to suspend without pay was fair and reasonable

LEGISLATION AND

INSTRUMENTS:

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

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

Public Service Act 2008 ss 137, 187, 194

Suspension Directive 16/20 cls 5, 6

Workplace Health and Safety Act 2011 (Qld) s 48

Workers in a healthcare setting (COVID-19 Vaccination Requirements) Direction (No. 4)

CASES:

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

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

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

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

  1. [1]
    Ms Sabrina Beber is a primary teacher at North Lakes State College.
  2. [2]
    On 16 December 2021, via Department of Education Employment Direction 1/21 – COVID-19 Vaccinations (Direction 1/21), the Department directed Ms Beber to be vaccinated against COVID-19. 
  3. [3]
    On 3 January 2022, Ms Beber wrote to North Lakes State College requesting consultation regarding vaccination requirements, raising safety concerns and requesting a risk assessment.  The letter appointed TPAQ as Ms Beber's representative and stated that Ms Beber believed that due to a lack of appropriate risk assessment and consultation, Direction 1/21 may be unlawful.[1]
  4. [4]
    On 14 January 2022, Ms Beber wrote to the Department to say that she was not vaccinated and was declining to be vaccinated due to being unable to make an informed decision without the provision of a risk assessment.[2]  That email said:

To Whom it May Concern

When I 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.

  1. [5]
    On 24 March 2022, David Miller, Executive Director, Early Learning and Development, Human Resources, wrote to Ms Beber (who was on long service leave from 20 January 2022 to 1 April 2022) to advise that the Department required her to provide a copy of her vaccination status to the Staff Vaccination Status mailbox prior to the conclusion of her leave.[3]
  2. [6]
    On 1 April 2022, Ms Beber sent an email to the Department advising that she was still unvaccinated and was waiting for medical advice.[4]
  3. [7]
    On 19 April 2022, Mr Miller wrote to Ms Beber informing her that she was not lawfully able to attend the workplace due to her failure to provide evidence she had been vaccinated against COVID-19 and that she was being suspending on normal remuneration.  Ms Beber was informed that Mr Miller was considering suspending her without pay and was provided seven days to show cause why she should not be suspended without pay.[5]
  4. [8]
    On 27 April 2022, Ms Beber provided a response to the proposal to suspend her without pay.[6]  In that letter Ms Beber refutes any allegations of liability to discipline and states that her employment contract does not provide a condition stating she 'had to take an experimental medical treatment to stay in my employment'. Ms Beber repeated her request for a risk assessment relevant to her specific circumstances.  Ms Beber expresses dismay that she has not received the opportunity to engage in meaningful consultation with the Department and says that she is 'flying blind' as she has 'not yet been afforded an opportunity to reach a conclusive decision about the vaccine due to the lack of consultation'.  Ms Beber stated that consultation has not been satisfactorily provided and calls on the Department to completely revoke the show cause process and commence consultation.  Ms Beber goes on to cite 'Pfizer's release of their internal documents' where '1291 adverse affects have been admitted'.  Ms Beber then requests that the Department guarantee that she will not experience any serious adverse effects as a result of the vaccine now and in the future and that if she does suffer serious adverse events in the future related to the vaccine, the Department 'ensure me lifetime medical bills and provision for my young family'.  Ms Beber also asks that other options be considered to allow her to make a living for her family.  Finally, Ms Beber asks that the 'show cause process is stayed'.
  5. [9]
    On 29 April 2022, Mr Miller advised Ms Beber that he had decided to suspend her without pay. The Department submits that due to an administrative oversight, Ms Beber's response had not been provided to Mr Miller for his consideration and therefore had not been factored into his correspondence.
  6. [10]
    After Ms Beber's response had been brought to Mr Miller's attention, he wrote to Ms Beber on 3 May 2022 to advise that the previous letter should be disregarded. Nevertheless, Mr Miller said that after careful consideration of her submissions, he had decided to suspend her without pay, from that date until 29 July 2022 or until otherwise advised.
  7. [11]
    It is the suspension without pay decision of 3 May 2022 that Ms Beber appeals.
  8. [12]
    Ms Beber filed her appeal against the decision on 11 May 2022, within 21 days of the decision.  I am satisfied that Ms Beber is a person who can appeal,[7] is appealing an appealable decision,[8] and has filed her appeal within time.[9]

The Direction and the Suspension

Direction 1/21

  1. [13]
    On 16 December 2021, the Director-General, Department of Education, issued Direction 1/21.[10]  Clause 2 of the Direction is unequivocal and states 'Compliance with this direction is mandatory'.
  2. [14]
    The purpose of Direction 1/12 is set out at cl 3.
  1. 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. [15]
    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. [16]
    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 '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. [17]
    Clause 8 provides information regarding application for exemption due to medical contraindication or participation in a clinical trial.
  4. [18]
    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…' cls 26 and 27 of the Chief Health Officer's COVID-19 Vaccination Requirements for Workers in a high-risk setting Direction.
  5. [19]
    Ms Beber is a person covered by Direction 1/21.
  6. [20]
    As I have done in previous matters relating to the Department of Education's Direction,[11] 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 relevant 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.

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

  1. [21]
    Clause 5 of the of Suspension Directive 16/20 ('the Suspension Directive') sets out suspension considerations and references s 137 of the Public Service Act 2008 (Qld) ('the PS Act') which 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.
  2. [22]
    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. [23]
    Clause 6.4 states that a decision to suspend an employee without remuneration is subject to the principles of natural justice. 

Suspension without pay decision

  1. [24]
    On 3 May 2022, Mr Miller wrote to Ms Beber to inform her that a decision had been made to suspend her without pay. The letter stated, in part:

I have carefully considered all the material before me, including your response, which I have considered in its entirety.  The fact that a particular matter is not specifically addressed in this letter does not mean that I did not carefully consider it.

The submissions made in your response indicate that you are not willing and/or able to comply with the Department of Education Employment Direction 1/22 – COVID-19 Vaccinations (Direction) at this time.

Accordingly, my decision is that it is not appropriate for you to receive normal pay during your suspension and that you are suspended from duty without pay. Your suspension without pay will take effect immediately from the date of this letter and, at this stage, will remain in place until 29 July 2022, or until otherwise advised.

My reasons for this decision are as follows:

  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 exceptional 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 available which appropriately manage the risk that arises due to your non-compliance.
  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 and appropriate use of public funds to allow you to continue to be paid while this process is underway.
  1. [25]
    The Respondent says that the suspension without pay was fair and reasonable.

Appeal principles

  1. [26]
    Section 562B(3) of the Industrial Relations Act 2016 ('the 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. [27]
    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. [28]
    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 3 May 2022 and decide whether that decision was fair and reasonable.
  1. [29]
    Findings made by the Department which are reasonably open to it based on the relevant materials or evidence should not be expected to be disturbed on appeal.

Ms Beber's appeal

  1. [30]
    Ms Beber's reasons for appeal were set out in her appeal notice:

In the letter the Executive Director David Miller states that that the Department have undertaken consultation with myself.  This has never happened.  I have not had an opportunity to engage in a meaningful degree of consultation to an extent that my concerns have been satisfied.

I request my Executive Principal many times to provide me a health and safety risk assessment relevant to my specific circumstances to allow me to make a more informed decision about the COVID-19 vaccine.

My requests have always been ignored.

I have continued to assert that I am ready, willing and able to work, and refuted any allegations of liability to discipline under a disciplinary law, such as the Department of Education Employment Direction 1/22 – COVID-19 Vaccination.

When I signed my employment contract there was no condition stating I had to take an experimental treatment to stay in my employment. I asked the Department of Education to direct me to this condition of my employment contract if this condition was present.  My request was disregarded.

In the light of Pfizer's release of their internal documents where 1,291 adverse effects have been admitted, I asked the Department of Education to guarantee that

  • I will not experience any serious adverse effects as a result of the vaccine now and in the future.
  • If I do suffer serious adverse events in the future related to the vaccine, the Department will have to cover lifetime medical bills and provide for my young family.

Once again, my demand was ignored.

Submissions of the parties and consideration of submissions

Respondent submissions

  1. [31]
    The Department filed extensive submissions on 26 May 2022 and submit that the decision was fair and reasonable. The Department says that where the Chief Health Officer had issued a public health direction that applied to the departmental locations, the Department was obliged to comply with it. The Department says it was not required to provide Ms Beber 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.
  2. [32]
    The Department accepts that Ms Beber holds particular views about COVID-19 vaccines but that a public service appeal is not the forum for a debate about the merits of the science behind the vaccines or public health policy to address the pandemic.[12]  The Department says that the views described by Ms Beber can be described as vaccine hesitancy and that vaccine hesitancy does not result in requiring compliance with the Direction being unreasonable having regard to the risk posed by COVID-19.[13]

Consultation

  1. [33]
    With regard to consultation, the Department says that it complied with its obligations under the Workplace Health and Safety Act 2011 (Qld) ('WHS Act') to consult with employees and with the registered unions representing employees in relation to the introduction of the vaccine mandate. The Department submits that the WHS Act imposes 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 the workforce.  The Department 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. With reference to the matter of Brassell-Dellow and Others v State of Queensland (Queensland Police Service),[14] the Department says that the union was not required to consult with employees individually and that where unions agree with a directive, 'consultation reached the level where the directive was not a matter of contention'.

Risk Assessment

  1. [34]
    With regard to Ms Beber's submission that she cannot provide informed consent without a risk assessment, the Department says that there is no lawful basis upon which Ms Beber could request access to a risk assessment undertaken by the Department in relation to the vaccines.[15]  The Department says that the approval of the vaccines by the Therapeutic Goods Administration and the Australian Technical Advisory Group on Immunisation is evidence on the public record of the safety and efficacy of the vaccines.  The Department says that it was not required to provide Ms Beber with assurance concerning the safety and efficacy of the vaccines,[16] and was not required to do its own risk assessment of the vaccines.[17]

Ms Beber did not provide evidence of circumstances specific to her precluding her from receiving the vaccine

  1. [35]
    The Department says that while Ms Beber stated that she was seeking medical advice regarding vaccination, she did not provide any evidence of her specific circumstances which meant she was unable to be safely administered the current vaccines. It was therefore reasonable for Mr Miller to conclude that Ms Beber's reasons for not complying with Direction 1/21 did not justify the approval of using public funds to pay Ms Beber while suspended and unable to work in a school. 

Consideration of alternatives or adjustments

  1. [36]
    The Department submits that Mr Miller considered all reasonable alternatives, including alternative duties or adjustments and remained of the view that there was no reasonable or alternative role or adjustments available.  The Department says that 'as a primary teacher, Ms Beber is required to be present in the school to deliver lessons and support students by providing learning experiences in a variety of settings through the active development of supportive learning environments and effective classroom management practices'.[18]
  2. [37]
    Further, the Department says that it was not for the Department to undertake a state-wide search of the public service to identify another role that Ms Beber could undertake.  The Department says that in circumstances where education settings had been deemed high-risk locations which Ms Beber would be unable to enter from 17 December 2021, it was entirely reasonable for Mr Miller to determine that there was no reasonable alternative role or reasonable adjustment available which appropriately managed the risk that arises from Ms Beber's non-compliance with Directive 1/21.[19]

Financial impact and related considerations regarding suspension without pay

  1. [38]
    The Department acknowledges that the suspension without pay will have a financial impact on Ms Beber but says that this is only one factor to consider and 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.[20]  The Department also notes that Ms Beber is not precluded from seeking employment with another employer.[21]

Nature of the disciplinary matter justified suspension without pay

  1. [39]
    The Department submits that Ms Beber has exercised a choice to refuse the direction to be vaccinated and that the consequences of failing to be vaccinated are made clear at cl 9 of the Direction which states that unvaccinated workers may not enter a high-risk setting. The Department says that given the nature of the disciplinary matter, it was fair and reasonable for Mr Miller to consider it was not in the public interest for Ms Beber to continue to be paid her normal remuneration in circumstances where she has made a choice not to follow the direction and is therefore unable to attend to her normal work duties.[22]

Ms Beber's submissions

  1. [40]
    Ms Beber's submissions in support of her appeal appear to have been prepared on her behalf. While Ms Beber corresponded with the Commission directly, there were also emails sent on her behalf by David Kerr, Senior Case Manager, Red Union Support Hub.
  2. [41]
    The second paragraph of her submissions states that 'the respondent's outline of submissions largely draw on the exemption application process and consultation requirements'.  This is curious as Ms Beber's appeal is in relation to a suspension without pay decision and not the refusal of an application for exemption. However, the submissions include Ms Beber's name in the header, and name her throughout, so I am assuming that Ms Beber (and her representative, in the event the submissions were prepared by a representative) intended for these to be her submissions in this matter and have referred to an exemption refusal in error.
  3. [42]
    Paragraph 3 of her submissions states that paragraphs 24 and 25 of the Respondent's submissions make reference to 'a number of matters to support their claim that the refusal of Ms Beber's exemption application was fair and reasonable'.  I again note that this is not an appeal against an exemption application refusal and a review of the Respondent's submissions demonstrates that those paragraphs of the submissions filed by the Respondent on 26 May 2022 do not discuss an exemption application or refusal. However, paragraphs 24 and 25 of the Respondent's submissions do refer to consultation and Ms Beber does contend that the consultation process was not 'reasonably practicable'.  So, I have considered those submissions below.

Consultation

  1. [43]
    Ms Beber maintains that the Department did not do all that was reasonably practicable to consult with the workforce.  With regard to the Department's submissions that it consulted with the relevant unions, Ms Beber says that:

private negotiations held by the Department with registered unions, without the opportunity for reply from a significant proportion of the workforce who are not members of registered unions, amounts to a rubber-stamping process from the employer.[23]

  1. [44]
    Ms Beber says that while it was noted in Brassell-Dellow that there has been a longstanding ability for registered unions to bargain on behalf of eligible members by default, having an individual bargaining agent is an equally uncontroversial view in the modern industrial relations system.  Ms Beber says that simply providing information is not satisfactory consultation and that s 48(1) of the WHS Act requires employers to express views and contribute to the decision-making process.
  2. [45]
    Ms Beber says that the Department's submissions focused on consultation regarding the safety and efficacy of the vaccines but that she also sought an assessment of the work environment, and to see if other alternatives existed that would still allow her to work.  As an example of an alternative, Ms Beber points to the Direction regarding workers in healthcare settings which discusses routine testing instead of vaccination in the event of a critical workforce shortage.[24] 
  3. [46]
    Ms Beber says that had the Department 'simply fulfilled their obligations in regards to consultation under the WHS Act and industrial instruments, the decision to reject Ms Beber's temporary exemption application would likely not have been seen as unfair and unreasonable by the appellant.' Ms Beber then seeks that the Respondent overturn the refusal of Ms Beber's application, until such a time when appropriate, lawful consultation and assessment of risk has occurred.[25]  As I mentioned above, this is not an appeal about an exemption application and Ms Beber did not make an application for exemption. However, I have read those submissions to mean that Ms Beber is aggrieved about the level of consultation that occurred and the rejection of her arguments raised in the response to the proposal to suspend
  4. [47]
    Ms Beber's submissions do not address the nature of the disciplinary matter, the financial impact of the suspension on her employment, or any alternative duties she believes should have been reasonably considered.  Though I note that in her response to the proposal to suspend her without pay, she does ask that consideration be given to enabling her to make a living for her family.
  5. [48]
    On Thursday 16 June 2022, Mr Kerr of Red Union Support Hub provided correspondence stating that the Applicant had no further submissions to make in this matter.

Matters to be considered in this appeal

  1. [49]
    The relevant Direction, Directives and Legislation are set out above.  Before moving to suspend an employee without remuneration, it is necessary for the decision-maker to consider particular matters.  I will address those below.

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

  1. [50]
    I note that the decision before me includes no disciplinary finding against Ms Beber.
  2. [51]
    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. [52]
    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 Beber was directed to be vaccinated by way of Direction 1/21.  Ms Beber did not apply for or receive an exemption. It is clear from the written submissions received in this matter that Ms Beber has not received the vaccination.
  4. [53]
    It was open to Mr Miller to form a reasonable belief that Ms Beber may be liable for discipline under a disciplinary law, as she has not complied with a direction given to her by a responsible person.
  5. [54]
    While I note Ms Beber's submissions regarding consultation and her request for a risk assessment, it is the case that the Department fulfilled its obligation to consult and there was no basis upon which Ms Beber could request a risk assessment.
  6. [55]
    With regard to Ms Beber's ground of appeal that her employment contract does not include a requirement to be vaccinated, I note that in Brassell-Dellow, the Full Bench addressed the matter of a direction given to an employee:
  1. [65]
    A direction given to an employee does not, without more, become a term or condition of employment.  This is made clear in the management prerogative cases.  Where a directive is within the scope of employment and is not contrary to the employment contract, the award or any certified agreement, the direction must be obeyed provided compliance does not involve illegality and the directive is reasonable.[26]
  1. [56]
    Ms Beber may believe that a perceived lack of consultation and the non-provision of a risk assessment constitutes a reasonable excuse for not complying with a direction given to her by a responsible person, however, Ms Beber will have the opportunity to make submissions regarding a potential disciplinary finding should a disciplinary show cause process be commenced against her.

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 Beber?

  1. [57]
    In her submissions supporting her appeal, Ms Beber does not make any suggestions about alternative duties that she believes she could have undertaken in lieu of a suspension without pay. 
  2. [58]
    I have considered cl 24 of the Workers in a healthcare setting (COVID-19 Vaccination Requirements) Direction (No. 4) which Ms Beber's submissions indicate could provide an alternative that would still allow her to work.  This suggestion is of limited use given it is a Direction related to workers in healthcare settings rather than schools and refers to a situation involving a critical workforce shortage.
  3. [59]
    A clause such as this, if it existed in the Direction that actually applies to Ms Beber, is clearly not intended to provide an alternative to a suspension without pay on a day-to-day basis.
  4. [60]
    Ms Beber is a classroom teacher.  Her role and duties require her to be in an education setting working with students. The Direction named education settings as high-risk locations.  This means that North Lakes State College, and other education settings were places Ms Beber could not enter from 17 December 2021.  In the circumstances, it was reasonable for Mr Miller to determine that there were no reasonable alternatives, including reasonable duties, a temporary transfer or another alternative working arrangement, available to Ms Beber.

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

  1. [61]
    The suspension without pay will clearly have a financial impact on Ms Beber, though there are no submissions before me addressing that impact. The Department acknowledges that the decision will have a financial impact on Ms Beber but says that this impact must be balanced against the Department's responsibility to ensure the 'effective, efficient and appropriate use of public resources, including the spending of public funds'.[27] 
  2. [62]
    The Direction required all employees working in high-risk settings to comply with the mandate.  In refusing to comply with the Direction, Ms Beber chose to place herself in a situation where it was impossible for her to undertake her role as a primary teacher.  It is clear that Ms Beber had not complied with the direction. As established above, it was open to Mr Miller to believe that Ms Beber may be liable to discipline. A refusal to comply with a lawful direction given by a responsible person is a serious matter. 
  3. [63]
    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 Beber to continue to be paid her normal remuneration in circumstances where Ms Beber had 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. 

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

  1. [64]
    I have reviewed the correspondence exchanged between the parties with regard to the initial suspension with remuneration, the proposal to suspend Ms Beber without remuneration, Ms Beber's response and the decision subject of this appeal.  I am satisfied that Ms Beber was afforded natural justice and procedural fairness.

Conclusion and Order

  1. [65]
    After considering the written submissions of the parties, I have determined that the decision of Mr Miller on 3 May 2022 to suspend Ms Beber without pay was fair and reasonable.

Order

  1. The Decision appealed against is confirmed.

Footnotes

[1] Respondent's submissions filed 26 May 2022, Attachment 1.

[2] Ibid Attachment 2

[3] Ibid Attachment 3.

[4] Ibid Attachment 4.

[5] Ibid Attachment 5.

[6] Ibid Attachment 6.

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

[8] Ibid s 196(bb).

[9] Industrial Relations Act 2016 s 564.

[10] Respondent's submissions filed 8 March 2022, Attachment 1.

[11] See, eg, Thorley v State of Queensland (Department of Education) [2022] QIRC 133 ('Thorley'); Currie (Murray) v State of Queensland (Department of Education) [2022] QIRC 269.

[12] Thorley (n 11) [44].

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

[14] [2021] QIRC 356, [129].

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

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

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

[18] Respondent's Submissions 26 May 2022, [26].

[19] Thorley (n 11) [94].

[20] Tilley (n 13) [47].

[21] Ibid [48].

[22] Thorley (n 11) [94].

[23] Applicant's submissions filed 9 June 2022.

[24] Workers in a healthcare setting (COVID-19 Vaccination Requirements) Direction (No. 4).

[25] These submissions appear to address an appeal against a vaccine exemption refusal. Ms Beber did not apply for an exemption from the Direction to be vaccinated.

[26] [2021] QIRC 356 [65].

[27] Respondent's submissions filed 26 May, [28].

Close

Editorial Notes

  • Published Case Name:

    Beber v State of Queensland (Department of Education)

  • Shortened Case Name:

    Beber v State of Queensland (Department of Education)

  • MNC:

    [2022] QIRC 295

  • Court:

    QIRC

  • Judge(s):

    Pidgeon IC

  • Date:

    05 Aug 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
Currie (Murray) v State of Queensland (Department of Education) [2022] QIRC 269
2 citations
Jump To
Cite 1 - [2022] QIRC 269
Cite 2 - [2022] QIRC 269
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
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
2 citations
Jump To
Cite 1 - [2022] FWC 593
Cite 2 - [2022] FWC 593
Thorley v State of Queensland (Department of Education) [2022] QIRC 133
5 citations
Jump To
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

No judgments on Queensland Judgments cite this judgment.

1

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