Miller v State of Queensland (Department of Education)
[2022] QIRC 316
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- Unreported Judgment
- Miller v State of Queensland (Department of Education)[2022] QIRC 316
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Miller v State of Queensland (Department of Education)[2022] QIRC 316
Miller v State of Queensland (Department of Education)[2022] QIRC 316
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Miller v State of Queensland (Department of Education) [2022] QIRC 316 |
PARTIES: | Miller, Deborah (Appellant) v State of Queensland (Department of Education) (Respondent) |
CASE NO.: | PSA/2022/572 |
PROCEEDING: | Public Service Appeal - Appeal against suspension without pay - Application for longer period of time to start appeal |
DELIVERED ON: | 12 August 2022 |
MEMBER: HEARD AT: | Merrell DP On the papers |
DATES OF WRITTEN SUBMISSIONS: | Appellant's written submissions filed on 24 May 2022 and Respondent's written submissions filed on 13 July 2022 |
ORDER: | The Appellant's application for a longer period to start her appeal is refused. |
CATCHWORDS: | PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – PUBLIC SERVICE APPEAL – Appellant employed by the State of Queensland as a Cleaner in the Department of Education at the Bowen State High School – by the Department of Education – Employment Direction 1/21 – COVID‑19 Vaccinations, the Appellant was required to receive a first dose of a COVID-19 vaccine by 17 December 2021 and to provide evidence of such vaccination – Appellant failed to comply with the Direction – Appellant afforded the opportunity to show cause why she should not be suspended without pay – Appellant provided response – Appellant advised of decision to suspend her without pay – Appellant appealed against decision to suspend her without pay – Appellant started appeal 14 days outside of the 21 day limitation period – Appellant applied for a longer period to start her appeal – consideration of relevant matters in respect of whether or not the discretion to allow the Appellant a longer period to start her appeal should be exercised in the Appellant's favour – application refused |
LEGISLATION: | Department of Education - Employment Direction 1/21 - COVID-19 Vaccinations, cl 5 Industrial Relations Act 2016, s 564 Public Service Act 2008, s 137 |
CASES: | Forsyth-Stewart v State of Queensland (Department of Education) [2021] QIRC 395 Forsyth-Stewart v State of Queensland (Department of Education) [2022] ICQ 12 |
Reasons for Decision
Introduction
- [1]Ms Deborah Miller is employed by the State of Queensland, through the Department of Education ('the Department'), as a Cleaner at the Bowen State High School.
- [2]By virtue of cl 5 of the Department of Education - Employment Direction 1/21 - COVID‑19 Vaccinations ('the Direction'), Ms Miller was required to receive a first dose of a COVID-19 vaccine by 17 December 2021 and to provide evidence of such vaccination.
- [3]Ms Miller gave no such evidence. Indeed, Ms Miller refuses to comply with the Direction.
- [4]By letter dated 10 January 2022 from Ms Genevieve Gillies-Day, Executive Director, People and Corporate Services of the Department, Ms Miller was advised that:
- she was suspended with pay as from 14 January 2022, which would remain in place until 14 April 2022; and
- she had the opportunity to respond, no later than close of business on 17 January 2022, as to why she should not, pursuant to s 137(4) of the Public Service Act 2008 ('the PS Act'), be suspended without pay.
- [5]By email sent on 5 April 2022, a response to Ms Gillies-Day's letter was provided by Ms Miller.
- [6]By letter dated 7 April 2022, Mr David Miller, Executive Director, Early Learning and Development of the Department, advised Ms Miller that, as from 7 April 2022, she would be suspended from duty without pay until 30 June 2022, unless otherwise advised ('the decision'). There is no dispute that Ms Miller received Mr Miller's letter dated 7 April 2022 by email on 7 April 2022.
- [7]By virtue of the combined effect of s 564(1) and s 564(3)(d) of the Industrial Relations Act 2016 ('the IR Act'), Ms Miller had to start her appeal on or before 28 April 2022. By appeal notice filed on 12 May 2022, Ms Miller appealed against the decision. As a consequence, Ms Miller started her appeal 14 days out of time.
- [8]In her appeal notice, Ms Miller acknowledged that she did not start her appeal within 21 days after she was given the decision and she applied for an extension of time in which to start her appeal.
- [9]This is my decision about Ms Miller's application to start her appeal within a longer period.
- [10]For the reasons that follow, Ms Miller's application for a longer period to start her appeal is refused.
The relevant provisions of the Industrial Relations Act 2016
- [11]Section 564(2) of the IR Act relevantly provides that on application made during or after the prescribed appeal period, the Commission may allow an appeal to be started within a longer period.
- [12]
- [13]In the appeal of that decision to the Industrial Court of Queensland, his Honour, Davis J, President, made no criticism of that approach.[3]
- [14]I will consider Ms Miller's application for a longer period in which to start her appeal by adopting that same approach.
Length of the delay
- [15]The length of the delay is 14 days. Such a delay is a significant delay.
Ms Miller's explanation for the delay
- [16]In her written submissions, Ms Miller gives no explanation for her delay. Despite the Directions Order I made on 18 May 2022, ordering the parties to make submissions about whether or not Ms Miller should be allowed an extension of time in which to start her appeal, Ms Miller's submissions did not go to that issue. Ms Miller's submissions went to why her appeal against the decision should be allowed.
- [17]However, in her appeal notice, Ms Miller states:
i've never had to do anything like this before and feeling very nervous. I didnt realize [sic] there was a period of time to lodge before.
- [18]In his letter dated 7 April 2022, Mr Miller relevantly stated:
If you believe that the decision is unfair and unreasonable, you may lodge an appeal under the appeal provisions of the Public Service Act 2008. The Queensland Industrial Relations Commission Industrial Registry will be able to provide further information about public service appeal procedures (www.qirc.qld.gov.au; Tel: 1300 592 987).
- [19]Ms Miller gave no indication, and made no submissions, about whether or not she made contact with the Industrial Registry about the relevant procedures to appeal the decision or, if so, when she made such contact.
- [20]For all these reasons, I am not persuaded that Ms Miller has provided an acceptable explanation for her delay.
Prejudice
- [21]The prejudice to Ms Miller is obvious in that she would be prevented from appealing the decision to suspend her without pay.
- [22]In addition to the ordinary prejudice it would suffer if Ms Miller was given a longer period of time in which to start her appeal, the Department submits that the prejudice it would suffer is compounded because Ms Miller's substantive appeal has low prospects of success.
Conduct of the Department
- [23]There is no conduct on the part of the Department that points to a consideration of extending the time for Ms Miller to start her appeal. Indeed, as set out above, Mr Miller, in his decision, expressly referred Ms Miller to her right to appeal against the decision and provided the contact details of the Industrial Registry in respect of the provision of information about public service appeal procedures.
Merits of the proposed appeal
- [24]The Department made extensive submissions as to why the decision was fair and reasonable and submitted that Ms Miller's prospects of success on appeal are low.
- [25]As referred to earlier, Ms Miller made detailed submissions about why her appeal should be allowed.
- [26]Given the submissions made, I am in a position to be able to form a preliminary view about Ms Miller's prospects of success in her substantive appeal and, to that extent, take that preliminary view into account in determining whether or not I should exercise my discretion to allow Ms Miller a further period of time in which to start her appeal.
- [27]In her response to Ms Gillies-Day's letter, Ms Miller stated that, for the reasons she gave in her response, she did not want to receive a COVID-19 vaccine.
- [28]The reasons given by Mr Miller, for his decision to suspend Ms Miller without remuneration, were that:
- Ms Miller failed to comply with the Direction;
- he had received no information that Ms Miller had applied for or received an approved exemption due to a medical contraindication or exceptional circumstances; and
- he determined it was not a responsible or appropriate use of public funds to allow Ms Miller to continue to be paid while the disciplinary process, commenced against her, was underway.
- [29]Ms Miller submits that the decision to suspend her without remuneration was not fair and reasonable because:
- it is not the law that she had to be doubly vaccinated and it was her choice not to be vaccinated;
- it is her understanding that the COVID-19 vaccines do not prevent a person from getting COVID-19, or prevent the spreading of COVID-19, but reduce the severity of the virus once a person is infected;
- being non-vaccinated makes her '… more at HIGH RISK of becoming very sick' than those who are vaccinated, so that if she is willing to work being non-vaccinated, she should not be suspended from work with or without pay;
- she should not be bullied into doing an act that she does not feel comfortable in doing;
- students are permitted to attend school whether they are vaccinated or not, so the same should apply for all staff; and
- as a school cleaner, she works alone for the majority of the time that she is employed.
- [30]At the conclusion of her written submissions, Ms Miller submits:
IT'S NOT MY CHOICE NOT TOO [SIC] WORK, so, let me work and receive an income, but if I'm still not allowed to be on school grounds to work, which is not my decision, then I feel I should not be punished by being SUSPENDED WITHOUT PAY. I'm the one at RISK, not the vaccinated staff and students.
- [31]The Department submits that Mr Miller's decision was fair and reasonable for reasons including that:
- the Direction was a reasonable and proportionate response to the public health risks of COVID-19;
- compliance with the Direction was a condition of Ms Miller's employment;
- Ms Miller did not apply for an exemption in respect of compliance with the Direction and she has given no reasonable explanation for her failure to comply with the Direction;
- the Department observed the principles of procedural fairness in making the decision; and
- while Ms Miller exercised her choice to refuse to comply with the Direction, the consequences of such non-compliance included that it was not in the public interest for Ms Miller to continue to be paid normal remuneration, in circumstances where she made a choice not to follow the direction given to her by her employer, and in circumstances where a consequence of her non-compliance was her inability to attend to her normal work duties.
- [32]Since the introduction of vaccination mandates by a number of State government departments in 2021, Members of this Commission have made a number of decisions, in public service appeals, dealing with employees to whom such a mandate applies and who, in the absence of applying for or being granted an exemption from compliance with such a mandate, have decided not to follow the lawful direction given to them to be vaccinated against COVID-19. The constant principle in those cases is that there will be consequences for employees who refuse to comply with a lawful direction given to them by the State as their employer. Those consequences may include being suspended without remuneration and, or in the alternative, having disciplinary action taken against them, including the termination of their employment.
- [33]In my view, the same principle applies in the present case. Ms Miller was given a lawful direction by her employer to be vaccinated against COVID-19. Ms Miller, on the material before me, has never applied for an exemption in respect of compliance with that direction. Ms Miller has refused to comply with the Direction. In those circumstances, it is fair and reasonable for the State to suspend her from her employment without paying her remuneration.
- [34]For these reasons, my preliminary view is that Ms Miller has very low prospects of success in respect of her appeal.
Considerations of fairness as between the Appellant and other persons in a like position
- [35]Neither party addressed this issue.
Ms Miller should not be allowed a longer period to start her appeal
- [36]In exercising discretion under s 564(2) of the IR Act, the fundamental objective is to do justice between the parties.
- [37]In my view, this is not a case where justice requires that Ms Miller be given a longer period of time in which to start her appeal. There are three reasons for this.
- [38]First, the delay of 14 days is a significant delay.
- [39]Secondly, Ms Miller has not given an acceptable explanation for her delay in starting her appeal. Mr Miller, in his letter dated 7 April 2022, advised Ms Miller of her appeal rights and provided the contact details of the Industrial Registry about the procedures for such an appeal. There was no submission or evidence from Ms Miller that she contacted the Industrial Registry, to seek advice about the procedures for her to appeal, in a timely manner.
- [40]Thirdly, for the reasons I have given above, Ms Miller's prospects of success in her appeal against the decision to suspend her without remuneration are very low.
Conclusion
- [41]For the reasons I have given, I refuse Ms Miller's application for a longer period to start her appeal.
Order
- [42]I make the following order:
The Appellant's application for a longer period to start her appeal is refused.