Murray v State of Queensland (Department of Education)
[2022] QIRC 355
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- Unreported Judgment
- Murray v State of Queensland (Department of Education)[2022] QIRC 355
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Murray v State of Queensland (Department of Education)[2022] QIRC 355
Murray v State of Queensland (Department of Education)[2022] QIRC 355
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Murray v State of Queensland (Department of Education) [2022] QIRC 355 |
PARTIES: | Murray, Mitchell (Appellant) v State of Queensland (Department of Education) (Respondent) |
CASE NO: | PSA/2022/555 |
PROCEEDING: | Public Service Appeal – Appeal against suspension without pay decision |
DELIVERED ON: | 13 September 2022 |
MEMBER: | Dwyer IC |
HEARD AT: | Brisbane |
HEARING DATE: | 13 September 2022 |
ORDER: |
|
CATCHWORDS: | PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – PUBLIC SERVICE APPEAL – appeal against 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 appellant failed to comply with the direction – where appellant suspended with renumeration – where there was a subsequent decision to suspend the appellant without renumeration – where appellant submits that the decision is unfair and unreasonable – where decision is fair and reasonable – decision confirmed |
LEGISLATION: | Industrial Relations Act 2016 (Qld) ss 562B, 562C Public Service Act 2008 (Qld) s 137 Directive 16/20 Suspension, cl 6 Employment Directive 1/22 – COVID-19 Vaccinations |
CASES: | George v Rockett (1990) 170 CLR 104 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] HCA 10; (1995) 183 CLR 245 Radev v State of Queensland (Queensland Police Service) [2021] QIRC 414 Brassell-Dellow and Others v State of Queensland (Queensland Police Service) [2021] QIRC 356 Tilley v State of Queensland (Queensland Health) [2022] QIRC 002 Casson v State of Queensland (Queensland Police Service) [2022] QIRC 113 |
APPEARANCES: | Mr M Murray the Appellant Mr A Piper and Ms K O'Connor for the Department of Education |
Reasons for Decision
Background
- [1]Mr Mitchell Murray is employed as a Senior Construction Teacher at Deception Bay State High School with the Department of Education ('the department'). It is not controversial that Mr Murray was subject to the Employment Direction 1/22 – COVID-19 Vaccinations ('the direction') which required him to be vaccinated against COVID-19 and that he has not complied with the direction.
- [2]Mr Murray was on long service leave from 20 January 2022 to 1 April 2022. On 6 January 2022, Mr Murray emailed the department advising he was not vaccinated (in response to their vaccination status survey).
- [3]On 1 April 2022, Mr Murray emailed the department requesting a risk assessment on three separate occasions so he could make an 'informed choice' about his circumstances. He confirmed at that time that he remained unvaccinated.
- [4]On 19 April 2022, Mr David Miller, Executive Director, informed Mr Murray that he was not lawfully able to attend the workplace due to his failure to provide evidence that he had been vaccinated against COVID-19. Mr Murray was subsequently suspended with renumeration and was advised that the department was giving consideration to suspending him without pay. Mr Murray was also advised he had seven days to show cause as to why he should not be suspended without pay.
- [5]On 27 April 2022, Mr Murray provided his response to the proposed suspension without pay. In his response Mr Murray insists that he is not an 'antivaxxer' but rather, he required a risk assessment to properly consider his position.
- [6]On 3 May 2022, Mr Miller issued a decision to suspend Mr Murray without remuneration, primarily pursuant to section 137(4) of the Public Service Act 2008 (Qld) ('PS Act') ('the decision').
- [7]It is this decision that Mr Murray now appeals.
Statutory framework for public service appeals
- [8]Chapter 11 of the Industrial Relations Act 2016 (Qld) ('the IR Act') provides the Queensland Industrial Relations Commission with jurisdiction to deal with appeals under the PS Act.
- [9]The IR Act provides that appeals are dealt with by way of review. That is to say, it is not a rehearing of the matter in the form of a hearing de novo.[1] The word 'review' is not defined and accordingly it must take its meaning from the context in which it appears.[2] The task of the Commission is to review the decision of Mr Miller to determine if it was fair and reasonable.[3]
- [10]It follows that if the Commission considers a decision was reasonably open to the decision maker, then the decision ought not to be disturbed regardless of whether the Commissioner hearing the appeal would have decided the matter differently.
- [11]Chapter 11 of the IR Act also limits the orders that the Commission can make in such appeals. The IR Act relevantly provides that the commission, having heard an appeal, may make one of the following orders:[4]
- (a)confirm the decision appealed against; or
- (b)…
- (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
Other legislation
- [12]My consideration of this matter centres on the provisions contained in section 137 of the PS Act and clause 6 of the Directive 16/20, Suspension Directive ('the directive').
- [13]Section 137 of the PS Act 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)
- [14]Clause 6 of the directive provides:
…
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.
6.4 A decision to suspend an employee without remuneration is subject to the principles of natural justice. Natural justice is the right to be given a fair hearing and the opportunity to present one's case, the right to have a decision made by an unbiased or disinterested decision maker and the right to have that decision based on logically probative evidence. As part of the suspension process:
- (a)The employee must be given the opportunity to respond to the proposed suspension without remuneration prior to the decision being made by the delegate. This can occur through a 'show cause' process at the time of notification of the initial suspension on normal remuneration, or at any subsequent stage during the suspension.
- (b)The employee is to be provided with written notice, including the particulars required by section 137 of the PS Act, and reasons for the decision that suspension is without normal remuneration.
- (c)The chief executive must provide the employee with a minimum of 7 days from the date of receipt of a show cause notice to consider and respond to the notice, having regard to the volume of material and complexity of the matter. The chief executive may grant, and must consider any request for, an extension of time to respond to a show cause notice if there are reasonable grounds for extension.
- (d)If the employee does not respond to a show cause notice or does not respond within the nominated timeframe in clause 6.4(b) and has not been granted an extension of time to respond, the chief executive may make a decision on grounds based on the information available to them.
…
- [15]The factors to be considered in determining that normal remuneration is not appropriate are (non-exhaustively) set out in clause 6.3 of the directive but are otherwise unlimited.
- [16]Further, the directive provides that before making a decision to suspend without remuneration, the employee must be given natural justice, including an opportunity to show cause why they ought not be suspended without remuneration.
Submissions of the parties
- [17]The parties filed written submissions in accordance with directions issued from my chambers on 11 May 2022.
Mr Murray
- [18]Mr Murray submits his appeal is only related to the departments refusal to engage in any consultation or provide a risk assessment before issuing the decision to suspend him without pay.[5]
- [19]Mr Murrays submissions contend that the department ought to have provided him with a risk assessment, which he submits he has requested on six occasions. They also address informed consent, which Mr Murray submits he cannot provide until he has received a risk assessment.
- [20]Mr Murray further confirmed at the hearing of this matter that he has asked for a risk assessment from the department on seven occasions and contends these requests have been ignored. He also reiterated that he is not an antivaxxer, and he is only concerned with the risk assessment.
The Department
- [21]The department's submissions contend that the decision to suspend Mr Murray without pay was fair and reasonable. The submissions note the lawful and reasonable nature of the direction. They categorise the matters raised in Mr Murray's correspondence as vaccine hesitancy, which the department notes does not result in compliance with the direction being unreasonable.[6]
- [22]The department notes it has complied with its consultation obligations under the Work Health and Safety Act 2011 (Qld), and references the decision of Brassell-Dellow and Others v State of Queensland (Queensland Police Service) ('Brassell-Dellow') where the Full Bench of this Commission held:[7]
Here, the unions agreed with the directive. In other words, the consultation reached the level where the directive was not a matter of contention. The unions, with total coverage over the workforce, agreed with it.
- [23]The department submits Mr Murray has no lawful basis upon which he can request a risk assessment by the department in relation to the vaccines, nor is the department under any obligation to provide Mr Murray with assurances concerning the safety or efficacy of the COVID-19 vaccines or conduct its own additional risk assessment.
Consideration
- [24]At a mention of this matter on 29 July 2022 Mr Murray was expressly directed to the decisions of Brassell-Dellow and Casson v State of Queensland ('Casson').[8] At the hearing of this matter Mr Murray indicated that he had not read those decisions. More's the pity because if Mr Murray had read those decisions (as I urged him to do) he would have been left in no doubt as to the futility of the arguments he now makes.
Consultation and risk assessment
- [25]Mr Murray asserts he is not an antivaxxer. He asserts that he is simply not able to comply with the directive because he has not been consulted about its requirements or provided with a risk assessment in respect of the mandate.
- [26]In Brassell-Dellow a Full Bench of this Commission dealt extensively with arguments about the rights of employees to demand 'consultation' about vaccine mandates and risk assessments. It is well settled as a result of the decision of the Full Bench that consultation with representative trade unions will be sufficient in large workforces. It is not disputed that the department in this instance consulted with the registered unions and that there was consent to the directive.
- [27]There is nothing about the facts of this matter that distinguishes Mr Murray. In those circumstances all of Mr Murray's arguments about consultation and demands for risk assessments are at odds with the law on the matter and, as purported reasons to justify disobeying a lawful and reasonable direction, they must fail.
Suspension without remuneration
- [28]In the matter of Casson, 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.
- [29]There are clear similarities between the circumstances of Casson and Mr Murray. 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.[9] Mr Murray's failure to comply with a lawful and reasonable direction is prima facie a form of misconduct and it represents a breakdown of an essential element of the employment relationship i.e. trust.
- [30]Further, the failure to follow a lawful and reasonable direction will very commonly result in the termination of employment as the loss of trust will, in all but the rarest of circumstances, make the relationship untenable.[10]
- [31]While considerations by the department subsequent to the decision have resulted in Mr Murray retaining his employment, these are not relevant facts for my consideration in the review of a decision made in May 2022. I must confine myself to the matters before the decision maker at the time of the decision.
- [32]At the time of the decision Mr Murray was in flagrant non-compliance with the directive. The directive was in place to manage the risk associated with the spread of COVID-19. COVID-19 is a highly transmissible and potentially deadly virus.
- [33]Mr Murray's non-compliance with the directive was a serious and unjustifiable act of defiance of his employer in the context of the department's very significant duties under the Work Health and Safety Act 2011 (Qld). In those circumstances there can be no doubt that the decision maker held a reasonable belief that Mr Murray was liable to disciplinary action and further, that such action could likely be termination of Mr Murray's employment.
- [34]Section 137(4) of the PS Act bestows a discretion on a decision maker to suspend without remuneration having regard to the nature of the discipline to which the decision maker believes the subject employee is liable. While Mr Murray has avoided a decision terminating his employment in this instance, there can be no doubt that termination was reasonably contemplated in May 2022.
- [35]In all of those circumstances I have no difficulty finding that the decision was fair and reasonable.
Order
- [36]In all of the circumstances, I make the following order:
- The decision appealed against is confirmed.
Footnotes
[1] 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.
[2] Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245, 261 (Mason CJ, Brennan and Toohey JJ).
[3] Industrial Relations Act 2016 (Qld) s 562B(3).
[4] Ibid s 562C.
[5] Appellant’s Outline of Submissions filed 7 June 2022 at paragraph 4.
[6] Tilley v State of Queensland (Queensland Health) [2022] QIRC 002 at [39].
[7] [2021] QIRC 356 at [129].
[8] [2022] QIRC 113.
[9] George v Rockett [1990] HCA 26; (1990) 170 CLR 104, 112 (Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ).
[10] It is noted that many employees of the department who were non-compliant have subsequently been allowed to return to work. This is a rare exception to what might otherwise have been reasonably expected but is undoubtedly a reflection on the importance of maintaining staffing levels in schools and the imperative to not replace one crisis with another.