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Vize v State of Queensland (Department of Environment and Science)[2022] QIRC 445

Vize v State of Queensland (Department of Environment and Science)[2022] QIRC 445

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Vize v State of Queensland (Department of Environment and Science) [2022] QIRC 445

PARTIES:

Vize, Anthony

(Appellant)

v

State of Queensland (Department of Environment and Science)

(Respondent)

CASE NOS.:

PSA/2022/606 and PSA/2022/608

PROCEEDING:

Public Service Appeals – Appeal against suspension without remuneration decision – Appeal against disciplinary finding decision – whether appeals should be dismissed under r 45 of the Industrial Relations (Tribunals) Rules 2011

DELIVERED ON:

17 November 2022

HEARING DATE:

On the papers

MEMBER:

Merrell DP

HEARD AT:

Brisbane

DATES OF WRITTEN SUBMISSIONS:

Appellant's written submissions filed on 9 August 2022 and Respondent's written submissions filed on 23 August 2022

ORDERS:

The orders made in paragraph [50] of these reasons.

CATCHWORDS:

PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – PUBLIC SERVICE APPEAL – Appellant employed by the State of Queensland as a Senior Technical Officer, classification TO3, in the Department of Environment and Science – cl 8 of the Department's COVID‑19 Vaccination Policy and Procedure required the Appellant to provide evidence that he was fully vaccinated against COVID–19 by 9 May 2022 – Appellant failed to comply with that direction – Appellant invited to show cause why a disciplinary finding should not be made against him in relation to the allegation he did not comply with the direction that he be vaccinated – Appellant invited to show cause why he should not be suspended without pay – Appellant submitted show cause responses – disciplinary finding decision that the allegation was substantiated – decision that Appellant should be suspended without pay – Appellant appealed against both decisions – directions issued by the Commission for the hearing and determination of both appeals, including that the Appellant file and serve written submissions – Appellant failed to comply with directions – whether Appellant's appeal should be dismissed pursuant to r 45 of the Industrial Relations (Tribunals) Rules 2011 – consideration of reasons given by Appellant for non-compliance with directions – no acceptable reason given by Appellant for non–compliance with directions – no reasonable prospect of success for appeal against suspension decision – appeal against decision to suspend Appellant without remuneration dismissed – Appellant accepted the allegation the subject of the disciplinary finding decision was substantiated – appeal against disciplinary finding decision misconceived – appeal against disciplinary finding decision dismissed

LEGISLATION:

Industrial Relations (Tribunals) Rules 2011, r 45

Directive 16/20 - Suspension, cl 5.2, cl 6.3 and cl 9.2

Public Service Act 2008, s 137, s 187 and s 194

CASES:

Batchelor v State of Queensland (Department of Environment and Science) [2022] QIRC 252

Casson v State of Queensland (Queensland Police Service) [2022] QIRC 113

Paul Scott v State of Queensland & Ors [2019] QIRC 115

Tursa Employment & Training Ltd v Rinaldi [2021] QIRC 214

Reasons for Decision

Introduction and background

  1. [1]
    Mr Anthony Vize is employed by the State of Queensland in the position of Senior Technical Officer, classification TO3 in the Department of Environment and Science ('the Department'). The location of Mr Vize's position is in Rockhampton.
  1. [2]
    Effective 27 January 2022, the Department issued a policy and procedure concerning COVID-19 vaccinations, the name of which is 'COVID-19 Vaccination Policy and Procedure' ('the Policy').
  1. [3]
    The combined effect of cls 8.1 and 8.2 of the Policy was that particular employees of the Department had to have received two doses of a COVID-19 vaccine by particular dates and provide evidence of such vaccinations.
  1. [4]
    Relevantly to Mr Vize, because he was on leave at the time of the dates by which the Policy directed that he receive a second dose of a COVID-19 vaccine, the Policy required employees on leave to be vaccinated against COVID-19, and provide evidence to the Department of such vaccination, prior to them returning to their usual roles from leave which, in the case of Mr Vize, was 9 May 2022.
  1. [5]
    Mr Vize did not comply with the direction that he be vaccinated and did not provide evidence of such vaccination, prior to him returning to his usual role from leave on 9 May 2022.
  1. [6]
    The consequence of that non-compliance was that by letter dated 13 May 2022 from Ms Vivienne Van Der Laak, Chief Human Resources Officer, Mr Vize was advised that Ms Van Der Laak was of the view that he may be liable to discipline pursuant to s 187 of the Public Service Act 2008 ('the PS Act'). Mr Vize was asked to show cause about the allegation that, in contravention of the direction given to him under the Policy, he did not provide evidence confirming he had received the required number of doses of an accepted COVID-19 vaccine ('the allegation'). Particulars of the allegation were provided.
  1. [7]
    Mr Vize was also informed that he was suspended from duty on normal remuneration upon his receipt of Ms Van Der Laak's letter and, further, he was invited to show cause as to why he should not be suspended from duty without remuneration ('the proposed suspension without remuneration').
  1. [8]
    Mr Vize provided responses to the allegation and to the proposed suspension without remuneration. Those responses were received by Ms Van Der Laak on 27 May 2022.
  1. [9]
    By letter dated 1 June 2022, Ms Van Der Laak informed Mr Vize of the following:
  • she determined that, pursuant to s 187(1)(d) of the PS Act, he contravened, without reasonable excuse, a direction given to him as a Departmental employee by a responsible person, specifically '… the direction as provided for in clauses 8.1(a), (b) and (d), and 8.2(a) and (b) of the COVID-19 Vaccination Policy and Procedure' ('the disciplinary finding decision'); and
  • she had decided, pursuant to s 137(1)(b) and s 137(4) of the PS Act, to suspend him from duty without remuneration ('the suspension decision').
  1. [10]
    In respect of the disciplinary finding decision, Ms Van Der Laak informed Mr Vize that he had seven days from his receipt of her letter to show cause as to why the proposed disciplinary action of the termination of his employment should not be taken.
  1. [11]
    By notice of appeal filed on 9 June 2022, Mr Vize appealed against the suspension decision ('the suspension appeal'). The suspension appeal was given Matter Number PSA/2022/606.
  1. [12]
    By further notice of appeal dated 10 June 2022, Mr Vize appealed against the disciplinary finding decision ('the disciplinary finding appeal'). The disciplinary finding appeal was given Matter Number PSA/2022/608.
  1. [13]
    By Directions Order issued by me dated 14 June 2022 in respect of the suspensionappeal, I directed that Mr Vize file and serve written submissions by 4.00 pm on19 July 2022, that the Department file and serve written submissions by 4.00 pm on23 August 2022 and that the suspension appeal be heard and determined before me on31 August 2022.
  1. [14]
    By separate a Directions Order issued by me dated 14 June 2022 in respect of thedisciplinary finding appeal, I directed that Mr Vize file and serve written submissionsby 4.00 pm on 19 July 2022, that the Department file and serve written submissions by4.00 pm on 23 August 2022 and that the disciplinary finding appeal be heard anddetermined before me on 31 August 2022.
  1. [15]
    Mr Vize did not comply with the Directions Orders in respect of the suspension appeal and the disciplinary finding appeal.
  1. [16]
    By email to the Industrial Registry sent on 20 July 2022, which was also sent to Mr Vize, the Department advised that Mr Vize had not served any submissions on it. No explanation was provided by Mr Vize, at or about that time, as to why he had not filed or served any submissions by the due dates. No other action was taken by Mr Vize after his receipt of the Department's email sent on 20 July 2022 to file and serve relevant submissions.
  1. [17]
    Given Mr Vize's non-compliance with the relevant Directions Orders, by Further Directions Order dated 26 July 2022, I ordered that the parties file and serve submissions as to why the suspension appeal and the disciplinary finding appeal should not be dismissed pursuant to r 45 of the Industrial Relations (Tribunals) Rules 2011 ('the Rules').
  1. [18]
    Both parties have filed submissions in respect of this issue.
  1. [19]
    The questions for my determination are whether or not I should, pursuant to r 45(3)(a) of the Rules, dismiss the suspension appeal and the disciplinary finding appeal.
  1. [20]
    For the reasons that follow, I dismiss both appeals.

The Rules

  1. [21]
    Rule 45 provides:

45 Failure to attend or to comply with directions order

  1. (1)
    This rule applies if-
  1. (a)
    a party to a proceeding receives notice of a directions order made by the court, commission or registrar stating a time, date and place for a hearing or conference for the proceeding; and
  1. (b)
    the party fails to attend the hearing or conference.
  1. (2)
    This rule also applies if-
  1. (a)
    a party to a proceeding receives notice of a directions order made by the court, commission or registrar; and
  1. (b)
    the party fails to comply with the order.
  1. (3)
    The court, commission or registrar may-
  1. (a)
    dismiss the proceeding; or
  1. (b)
    make a further directions order; or
  1. (c)
    make another order dealing with the proceeding that the court, commission or registrar considers appropriate, including, for example, a final order; or
  1. (d)
    make orders under paragraphs (b) and (c).
  1. [22]
    Rule 45 was considered by O'Connor VP in the matter of Paul Scott v State of Queensland & Ors.[1] That case involved an application, made pursuant to r 45 of the Rules, by the respondents to dismiss a referred discrimination complaint because of the complainant's failure to comply with directions orders made by the Commission.
  1. [23]
    In granting the respondents' application, his Honour relevantly stated:[2]
  1. [8]
    In Quaedvlieg and Ors v Boral Resources (Qld) Pty Ltd his Honour President Hall, in dealing with an application to strike out for want of prosecution, cited with approval the reasoning of Thomas JA in Quinlan v Rothwell & Anor as follows:

There is now a consciousness of the need for some level of efficiency in the use of the courts as a public resource. That, of course, must not displace the need for reasonable access to the courts and the provision of justice according to law in each matter, but it highlights the fact that the former laissez faire attitude by courts towards the leisurely conduct of actions at the will of the parties has ended. At the same time the rules of court are not an end in themselves. They do not exist for the discipline of practitioners or clients, or for the protection of courts from inefficient litigants, but rather as a means of ensuring that issues will be defined in an orderly way and that parties have the opportunity of full preparation of their case before the trial commences. The rules also afford defendants the means of bringing to an end actions in which the other party will not abide by the rules.

  1. [9]
    Whilst Quinlan v Rothwell & Anor related to the application of the Uniform Civil Procedure Rules 1999 in respect of application to dismiss for want of prosecution, in my respectful view, the reasoning of Thomas JA has equal application to the current proceedings.
  1. [10]
    In Lenijamar Pty Ltd and Ors v AGC (Advances) Ltd, Wilcox and Gummow JJ in dealing with a similar provision under the Federal Court Rules stated that the discretion conferred by the rule was:

unconfined, except for the condition of noncompliance with a direction ... [b]ut two situations are obvious candidates for the exercise of the power." The first were "cases in which the history of non-compliance by an applicant is such as to indicate an inability or unwillingness to co‑operate with the Court and the other party or parties in having the matter ready for trial within an acceptable period". The second were cases "whatever the applicant’s state of mind or resources - in which the non-compliance is continuing and occasioning unnecessary delay, expense or other prejudice to the respondent.

  1. [11]
    Their Honours went on to observe:

Even though the most recent non-compliance may be minor, the cumulative effect of an applicant’s defaults may be such as to satisfy the judge that the applicant is either subjectively unwilling to co-operate, or for some reason, is unable to do so. Such a conclusion would not readily be reached; but where it was, fairness to the respondent would normally require the summary dismissal of the proceeding.

  1. [24]
    Vice President O'Connor also said that the discretion conferred under r 45 must be exercised judicially.[3]
  1. [25]
    In Tursa Employment & Training Ltd v Rinaldi,[4] O'Connor VP further stated in respect of r 45 of the Rules:
  1. [42]
    Whilst the authorities referred to are drawn from different statutory contexts, they nevertheless identify some underlying principles which ought to be considered when determining whether a discretion under s45 of the IR Rules is to be exercised. The Commission must be satisfied that there is an acceptable explanation for the delay; that there would be no undue prejudice to the Respondent if the Commission were to grant leave; and that there is merit in the substantial application.

Mr Vize's submissions

  1. [26]
    In respect of both the suspension appeal and the disciplinary finding appeal, Mr Vize relevantly submits:
  • he was not aware and he did not notice the '… relevant clause detailing the requirement to respond to the relevant parties by 19th July 2022';
  • he had not opened the emails containing the Directions Orders '… or viewed any documents in the above emails, and therefore I was not under the reasonable notice of its existence*';
  • prior to 20 July 2022, he '… had the understanding that all relevant directions were contained in the emails' he received on 15 June 2022 from the Commission; and
  • he had been under emotional stress since receiving '… legal proceedings from Vivienne Van Der Laak (via electronic mail) dated 1 June 2022 containing strong consideration of the termination of my employment of 14 years with QPWS.'
  1. [27]
    In respect of the suspension appeal, Mr Vize further submitted that:
  • he had been suffering financial pressure as '… my fortnightly salary was subsequently cut-off by DES Payroll. I believe these extreme actions equate to severe punishment and could be viewed as a form of financial coercive control to obtain a desired outcome contrary to a persons [sic] own personal beliefs'; and
  • he should be afforded the right to have a fair hearing in respect of that appeal.
  1. [28]
    In respect of the disciplinary finding appeal, Mr Vize further submitted that, relevantly, under the Industrial Relations Act 2016, he had certain '… inalienable rights' in respect of his (proposed) dismissal which he wanted honoured.

The Department's submissions

  1. [29]
    The Department relevantly submitted that:
  • Mr Vize's failure to comply with the Directions Orders rests solely on him and the explanation offered by him for his non-compliance does not provide a compelling reason to excuse his non-compliance;
  • even upon being made aware that he had not complied with the Directions Orders, he did not appear to take any corrective steps and simply ignored the matters;
  • Mr Vize's arguments in the suspension appeal, namely, his personal views about vaccination, do not give rise to an arguable case;[5]
  • in relation to the disciplinary finding appeal, Mr Vize accepts that the allegation is substantiated but argues the proposed penalty is not fair or reasonable, and that the Commission has no power to entertain an appeal against proposed disciplinary action;[6] and
  • to allow either appeal to continue and waste further public funds - in the face of reckless non-compliance with the Directions Orders, Mr Vize's acceptance of the disciplinary finding decision and the lack of an arguable case in either appeal - is unreasonable, not in accordance with the principles of the Rules and, therefore, both appeals should be dismissed.

Mr Vize's explanation for his non-compliance

  1. [30]
    Mr Vize submits that he did not open the emails that were sent to him containing the Directions Orders. It is incumbent on any person to comply with the rules and orders of the court or tribunal before which they are a litigant. This is to ensure the just and expeditious disposition of the business of the court or tribunal at a minimum of expense. The suspension and disciplinary finding appeals were started by Mr Vize. It was incumbent on Mr Vize to be diligent in checking his emails from the Industrial Registry following on from him starting his appeals. His explanation is not acceptable.
  1. [31]
    Further, I cannot accept Mr Vize's submission that a reason for his non-compliance is that he had been under emotional distress since he received Ms Van Der Laak's correspondence dated 1 June 2022. Mr Vize's receipt of that correspondence was no impediment to him commencing the suspension appeal on 9 June 2022 in which he gave detailed reasons for that appeal. Similarly, Mr Vize's receipt of Ms Van Der Laak's correspondence was no impediment to him commencing the disciplinary finding appeal on 10 June 2022 in which he again gave detailed reasons for that appeal.
  1. [32]
    For all these reasons, I find that Mr Vize has not provided any acceptable explanation for his non-compliance with the Directions Orders I issued on 14 June 2022.

No other action taken

  1. [33]
    As the Department submits, upon the Department, by its email sent on 20 July 2022, informing the Industrial Registry and Mr Vize that it had not been served with any submissions from Mr Vize, there is no evidence of any action taken by Mr Vize to attempt to comply with the earlier Directions Orders.
  1. [34]
    Further, there is no evidence of any explanation given by Mr Vize, to the Industrial Registry or to the Commission, at or about 20 July 2022, for his non-compliance.

The suspension appeal

  1. [35]
    In his reasons for this appeal, Mr Vize states:

I claim that the required disciplinary grounds do not exist to warrant a disciplinary action of suspension without remuneration (Refer PDF document '20220601 - A Vize - Decision on SCNI and further SCN' attached) as this extreme outcome would be unreasonable to a reasonable person - punishment for not following a departmental internal policy. I have demonstrated repeatedly in my show case notices that I have reasonable excuse based on personal health ethics and broad understanding of contemporary public health data. I claim that the disciplinary action of suspension without remuneration is inconsistent with section 4. How the main purpose is primarily achieved: (a) - (e), (g), (i), (l), (m), (p) and (q) of the QIR Act 2016.

DIRECTIVE 16/20 (Suspension) 1. Purpose

1.2 This directive supports the Public Service Act 2008 (PS Act) requirements relating to suspension. Suspension is an administrative action, taken for administrative necessity. It is not disciplinary action and is not to be used as a form of punishment. Suspension should be used as a last resort after a decision maker considers all alternative duties prior to making the decision to suspend an employee.

DIRECTIVE 16/20 (Suspension) 4. Principles

4.1 Suspending an employee should not be the automatic or default position. The PS Act requires that before suspending an employee, the chief executive must consider all reasonable alternatives, including alternative duties, a temporary transfer, or another alternative working arrangement, that is available to the employee.

I claim the basis of appeal is relevant to the Queensland Industrial Relation Act 2016 which [sic] main purpose is to promote a framework of cooperative industrial relations which is [sic] avoids employee suspension and / or termintion [sic] until all other options are worked through successfully or exhausted, ensures dispute decisions are fair and balanced, and promote the economic prosperity and social justice for all Queenslanders.

  1. [36]
    In terms of the first reason for his appeal, Ms Van Der Laak, in her letter dated 1 June 2022, dealt with Mr Vize's submission that he had a reasonable excuse not to comply with the direction that he be vaccinated. Ms Van Der Laak relevantly stated:
  • while I acknowledge your advice as to your concerns about the safety and efficacy of COVID-19 vaccines, I note it was determined in Tilley v State of Queensland (Queensland Health) [2022] QIRC 2 (7 January 2022) that personal views on vaccine safety preference for a particular vaccine does not make the vaccine requirement unreasonable
  1. [37]
    That reason given by Ms Van Der Laak accords with the consistent approach taken by this Commission in decisions where employees, without a proven medical contraindication, have refused to be vaccinated because their preference is not to be vaccinated. For this reason, I am not persuaded that this ground for Mr Vize's appeal, that he had a reasonable excuse not to comply with the vaccination direction '… based on personal health ethics and broad understanding of contemporary public health data', discloses a reasonable ground of appeal.
  1. [38]
    In dealing with her decision to suspend Mr Vize without remuneration, Ms Van Der Laak also stated:

I have carefully considered the material before me, including your response received on 27 May 2022. I note, in particular, your submissions to the effect that:

  • this process has impacted upon your mental health and "ability to express [your] emotions"
  • you would experience severe financial hardship should you be suspended without remuneration
  • in making a decision to suspend you, that proper consideration was not given to alternative options, or such considerations were not properly documented.

I note:

  • the factors set out in the correspondence of 13 May 2022 as to reasons for suspension remain including the lawful basis upon which a decision about suspension with or without remuneration can be made. Further, you were advised of your rights of review in the event that you do not believe that the procedural requirements set out in the suspension directive were met
  • as detailed in my previous correspondence and reflected above you are subject to a discipline process for a failure to comply with a lawful direction. In the correspondence of 13 May 2022, I set out the allegation against you, and, as detailed above, having considered all information before me, I have determined the allegation is substantiated
  • A decision to suspend without remuneration is not contingent upon a determination that there are external factors that affect the timeframes for solution of a matter - rather any such factors are a consideration
  • the nature of the discipline matter is such that (as outlined above) I am giving serious consideration to termination of employment as a disciplinary action (the reasons for which are outlined above). Accordingly, I consider this matter to be serious
  • I acknowledge your advice that you will suffer hardship if you are suspended without remuneration, however I do not consider that this is [sic] outweighs the seriousness of the matter
  • I have considered the public interest in your [sic] remaining on suspension with remuneration. As termination of employment is being considered, I do not consider that it is in the public interest that you remain on suspension with remuneration while this process continues. I note in this regard the decision of Dwyer IC in Casson v State of Queensland (Queensland Policy [sic] Service) [2022] QIRC 113.
  1. [39]
    In my view, having regard to cl 6.3 of Directive: 16/20 - Suspension ('the Suspension Directive'), Ms Van Der Laak, in these reasons, took into account all the relevant considerations in determining to suspend Mr Vize without remuneration. It also is my view that these matters were reasonably considered by Ms Van Der Laak such that her decision, having regards to these reasons, would be fair and reasonable.
  1. [40]
    The other reason for Mr Vize's appeal against the suspension decision concerns the alleged failure of the Department to consider all reasonable alternatives, including alternative duties, a temporary transfer, or another alternative working arrangement, that were available as an alternative to suspension.
  1. [41]
    I am unsure what Mr Vize's specific case is about that ground. Ms Van Der Laak expressly dealt with this issue in her letter dated 13 May 2022 in which she advised Mr Vize that he was suspended with remuneration. In that letter, Ms Van Der Laak relevantly stated:

Section 137(3) of the PS Act provides that before suspending an employee, consideration must be given to all reasonable alternatives that may have been available for you to perform.

I have considered whether there are any reasonable alternatives to suspending you from duty, including alternative duties, a temporary transfer (either in your current workplace or another workplace) or another alternative working arrangement, or asking you if you wish to access accrued recreation and/or long service leave. In considering this, I have undertaken an assessment of the allegation and your role within DES and whether your continuation in the role or another role presents any potential risk to DES or others.

I have considered all possible alternative duties to which you could be assigned, including assigning alternative duties and/or directing you to work at an alternative location (including working from home).

I do not consider the alternative duties, or a temporary transfer, or other alternative working arrangements, to be available or appropriate in the current circumstances having regard to:

  • the vaccination requirements - noting the requirements apply to all DES roles where employees attend a departmental workplace / worksite
  • the department's policy on Flexible Work Arrangements, and noting that it is not appropriate to support 100% work from home arrangements to support alleged non-compliance with departmental policy
  • the nature of the allegation - that you are alleged to have contravened a direction given to you in awareness that discipline action may be taken as a consequence
  • I consider that any impact on your human rights is reasonable and justifiable for the above reasons.
  1. [42]
    Also in her letter dated 13 May 2022, Ms Van Der Laak advised Mr Vize of his ability to seek a review by the Public Service Commission[7] about any reasonable belief he may have had that the Department did not comply with the Suspension Directive, such as whether or not consideration was given to reasonable alternatives to suspending him from duty.[8] Mr Vize appears not to have taken the relevant steps to be able to seek such a review. In any event, the issue on appeal is Mr Vize's suspension without remuneration, not the reasons for decision to suspend him from duty.
  1. [43]
    Having regard to Mr Vize's failure to provide an acceptable explanation for his non‑compliance with the Directions Order to file and serve submissions in relation to his appeal against the decision to suspend him without remuneration, his lack of corrective action and my assessment that he does not have reasonable grounds for appeal, the proper course is, pursuant to r 45(3)(a) of the Rules, to dismiss Mr Vize's appeal against the suspension decision.

The disciplinary finding appeal

  1. [44]
    In his reasons for this appeal, Mr Vize states:

I accept that Allegation One (Refer PDF document '20220601 - A Vize - Decision on SCN1 and further SCN' attached) is substantiated on the disciplinay [sic] findings but the inevitable process of termination is unfair and unreasonable, and to a reasonable person it would seem very unreasonable. In my show cause response I repeatedly demonstrated that I have reasonable excuse based on my personal health ethics and contemporary understanding of public health data interpretation. Furthermore I claim that the disciplinary finding is inconsistent with the principles of integrity and impartiality of the Code of Conduct (CoC) for QLD Public Servants (2011) which is derived from the Public Sector Ethical Standards Act (1994).

DIRECTIVE 14/20 (Discipline) stakes the qualifying section to determine discipline is 187(1)(g) which has not been followed by the CHRO in determining the type of disciplinary action rather section 187(1)(d) has been referenced to determine the discplinary [sic] law. I cite section 1.3 - The purpose of this directive is to: (c) outline the circumstances in which a contravention of section 187(1)(g) of the PS Act is likely to be considered sufficiently serious to warrant disciplinary action.

I question why the disciplinary action was the only non-compliance action activated as I refer to section 4. of the same directive Principles 4.1 - Disciplinary process is not a substitute for management action and the need for managers to undertake early intervention to address unacceptable conduct.

I am aware that any part of the PSA2008 can be used as disciplinary grounds to formulate disciplinary action due to a disciplinary law - that isn't being contested. I am asking for a review of the disciplinary action and outcomes which has only used financial punishment (temporary and permanent) as a form of coercive control to force compliance to an internal agency policy. Domestic and Family Violence includes restrictive actions such as taking your pay and stopping a person from working or furthering your education, and are now part of all government workplace policy.

The disciplinary finding and action of suspension leading to termination is a threat to my fundamental human rights - the ability to provide food and lodgings to give security to the family unit - proclaimed as international law in Articles 12, 23 and 25 - Universal Declaration of Human Rights (1948).

  1. [45]
    Clearly, Mr Vize accepts that the allegation made against him was substantiated. Having regard to his reasons for appeal, Mr Vize is in fact attempting to appeal against the proposed disciplinary action, for which he has been invited to show cause, of the termination of his employment. There has been no decision made by the Department as to what disciplinary action, if any, will be taken against Mr Vize following on from the disciplinary finding decision.
  1. [46]
    I am unaware as to whether or not Mr Vize has made submissions to the Department about the fairness, or otherwise, of the proposed disciplinary action.
  1. [47]
    The Department is correct in its submissions in that there is no capacity for Mr Vize to appeal against a proposed disciplinary decision. Mr Vize can only appeal against an actual disciplinary decision.[9]
  1. [48]
    The result is that Mr Vize accepts the allegation made against him was substantiated, but he is actually appealing against a decision that has not been made at this point, namely, what disciplinary action, if any, may be taken against him. Mr Vize is purporting to appeal against a decision that has not been made. For this reason, together with Mr Vize's failure to provide an acceptable explanation for his non-compliance with the Directions Order to file and serve submissions in relation to his purported appeal against the disciplinary finding decision, and his lack of any corrective action, the proper course is, pursuant to r 45(3)(a) of the Rules, to dismiss Mr Vize's appeal against the disciplinary finding decision.

Conclusion

  1. [49]
    For the reasons I have given, Mr Vize's appeals against the suspension decision and against the disciplinary finding decision should be dismissed.

Orders

  1. [50]
    I make the following orders:
  1. Pursuant to r 45(3)(a) of the Industrial Relations (Tribunals) Rules 2011, Matter Number PSA/2022/606 is dismissed.
  1. Pursuant to r 45(3)(a) of the Industrial Relations (Tribunals) Rules 2011, Matter Number PSA/2022/608 is dismissed.

Footnotes

[1] [2019] QIRC 115.

[2] Ibid (Citations omitted).

[3] [2019] QIRC 115, [13].

[4] [2021] QIRC 214.

[5] Citing Casson v State of Queensland (Queensland Police Service) [2022] QIRC 113, [30] (Industrial Commissioner Dwyer).

[6] Citing, amongst other decisions,Batchelor v State of Queensland (Department of Environment and Science) [2022] QIRC 252, [9]-[12] (Industrial Commissioner McLennan).

[7] Directive: 16/20 - Suspension, cl 9.2.

[8] Directive 16/20 - Suspension, cl 5.2.

[9] Public Service Act 2008 s 194(1)(b)(i).

Close

Editorial Notes

  • Published Case Name:

    Vize v State of Queensland (Department of Environment and Science)

  • Shortened Case Name:

    Vize v State of Queensland (Department of Environment and Science)

  • MNC:

    [2022] QIRC 445

  • Court:

    QIRC

  • Judge(s):

    Merrell DP

  • Date:

    17 Nov 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
Batchelor v State of Queensland (Department of Environment and Science) [2022] QIRC 252
2 citations
Jump To
Cite 1 - [2022] QIRC 252
Cite 2 - [2022] QIRC 252
Casson v State of Queensland (Queensland Police Service) [2022] QIRC 113
3 citations
Jump To
Cite 1 - [2022] QIRC 113
Cite 2 - [2022] QIRC 113
Cite 3 - [2022] QIRC 113
Paul Scott v State of Queensland [2019] QIRC 115
3 citations
Jump To
Cite 1 - [2019] QIRC 115
Cite 2 - [2019] QIRC 115
Cite 3 - [2019] QIRC 115
Tilley v State of Queensland (Queensland Health) [2022] QIRC 2
1 citation
Jump To
Cite 1 - [2022] QIRC 2
TURSA Employment & Training Limited v Rinaldi [2021] QIRC 214
2 citations
Jump To
Cite 1 - [2021] QIRC 214
Cite 2 - [2021] QIRC 214

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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