Paterson v State of Queensland (Department of Education)
[2022] QIRC 469
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- Unreported Judgment
- Paterson v State of Queensland (Department of Education)[2022] QIRC 469
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Paterson v State of Queensland (Department of Education)[2022] QIRC 469
Paterson v State of Queensland (Department of Education)[2022] QIRC 469
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Paterson v State of Queensland (Department of Education) [2022] QIRC 469 |
PARTIES: | Paterson, Melissa (Appellant) v State of Queensland (Department of Education) (Respondent) |
CASE NO: | PSA/2022/687 |
PROCEEDING: | Public Service Appeal - Appeal against a suspension without pay decision |
DELIVERED ON: | 2 December 2022 |
MEMBER: | Hartigan 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 a suspension without pay decision – where the appellant was suspended without pay for not complying with Direction 1/21 – COVID-19 Vaccinations – where appellant submits that decision is unfair and unreasonable – whether appeal filed out of time – appeal not filed out of time – appeal decision confirmed |
LEGISLATION: | Industrial Relations Act 2016 (Qld), s 197, s 562 Public Service Act 2008 (Qld), s 137, s 194 Department of Education Employment Direction 1/21 Public Service Commission Suspension Directive 16/20, cl 6 |
CASES: | Brandy v Human Rights and equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245 Goodall v State of Queensland (Unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018) A1 Rubber (Aust) Pty Ltd v Chapman (Office of Industrial Relations) [2019] ICQ 16 Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176; (1984) 3 FCR 344 |
Reasons for Decision
Introduction
- [1]Ms Melissa Jayne Paterson is employed by the State of Queensland (Department of Education) ('the Department'). Ms Paterson is permanently employed as a teacher at Ravenshoe State School.
- [2]Ms Paterson states that she is appealing a decision to not reimburse her remuneration for a period that she was suspended without pay.
- [3]This appeal has been commenced in the context of Ms Paterson allegedly failing to comply with a direction which required Ms Paterson to comply with the requirements of the Department of Education Employment Direction 1/21 - COVID-19 Vaccinations ('Direction 1/21').
- [4]Direction 1/21 requires that all existing and prospective Department of Education workers who attend a high-risk setting be vaccinated against COVID-19 unless the worker has a valid exemption. Section 3 of Direction 1/21 prescribes that 'high-risk settings' include schools and outdoor education facilities. Relevantly, Ms Paterson's employment as a teacher falls within a 'high-risk setting' and she is therefore required to be vaccinated against COVID-19.
- [5]By letter dated 10 January 2022, the Department put an allegation associated with Ms Paterson's failure to comply with Direction 1/21 and determined to suspend Ms Paterson from duties on normal remuneration. The Department also advised Ms Paterson that they were considering suspending her without pay and provided Ms Paterson with seven (7) days to respond as to why she should not be suspended without pay.
- [6]On 17 January 2022, Ms Paterson responded to the show cause notice. In her response, she outlined her concerns regarding her hesitancy to receive the vaccine because of her medical history and is also of the view that Direction 1/21 is a 'direct contravention of [her] religious beliefs'. Further, Ms Paterson contends that Direction 1/21 is unlawful and impinges on her human rights.
- [7]By letter dated 27 January 2022, the Department issued a decision that Ms Paterson be suspended from duty without normal remuneration pursuant to s 137(1)(b) of the Public Service Act 2008 (Qld) ('PS Act'). Ms Paterson did not appeal this decision.
- [8]By letter dated 24 June 2022, the Department advised Ms Paterson that Direction 1/21 had been revoked and that her suspension from duty would cease on 30 June 2022.
- [9]By notice of appeal filed on 25 July 2022, Ms Paterson appeals the decision dated 24 June 2022, in particular, Ms Paterson appeals the component of the decision where the Department advised her that she will not be repaid for the period she was suspended without remuneration. Ms Paterson attaches to the appeal the decision dated 27 January 2022 and the decision dated 24 June 2022, and provides the following in support of her appeal:
I am appealing the decision by the Queensland Department of Education that states "I confirm that you will not be repaid for the period you were suspended without pay", conveyed to me by email dated 24/06/2022, subject title "A message regarding your suspension from duty", and letter titled "Cancellation of Suspension", as it directly contravenes Clause 6.6 of the Suspension Directive 16/20 which states "An employee must be reimbursed for remuneration the employee does not receive during the employee's suspension if a decision on discipline has been made that does not result in termination of their employment." I have not been informed of any decision of a disciplinary matter. I have never during the course of my employment with the Department been subject to discipline. I was directed back to work from the beginning of term 2 (suspension lifted 30/06/2022), and returned to fulltime duties at my school from 11/07/2022 as directed. Clearly, my employment has not been terminated. I returned to work as directed. I was suspended without pay on 27/01/2022 and lawfully unable to attend my workplace as I had been directed not to do so. Subsequently, my suspension was lifted.
The Department's 24/06/2022 confirmed decision by David Miller, Executive Director, Department of Education, was apparently based on Clause 6.10 in the Suspension Directive and other "reasons outlined" in "previous suspension correspondence", supposedly the email received 27/01/2022 from Kristy Springer, A/Executive Director, Organisation Development, Department of Education, titled "Decision on suspension without pay". Clause 6.10 states that "If the employee was not available to work during the period of suspension for reasons other than being suspended (for example, due to being detained in a corrective services facility), then the amount repaid to the employee must be less the total number of days that the employee was not available to work during the period of suspension". Categorically the only reason I was unable to attend my workplace in a working capacity was due to the suspension, as outlined by Kristy Springer in the 27/01/2022 email. This email also presented the requirement that I remain available to the Department and notify them should I not be contactable for a period beyond 3 business days, which I fully abided by. I was at all times during the course of my suspension able and willing to attend my workplace and be fully available to my employer. Hence, I was solely restricted by the suspension, thus indicating Clause 6.10 is not applicable in my circumstances as the reason for withholding any of the remuneration I am entitled to, as Clause 6.6 states "An employee must be reimbursed for remuneration the employee does not receive during the employee's suspension if a decision on discipline has been made that does not result in termination of their employment".
- [10]I listed the matter for mention on 29 July 2022 to hear from the parties in relation to the appeal, in particular, to seek clarification from Ms Paterson with respect to the nature of the appeal that has been filed. In the mention, Ms Paterson confirmed that she was seeking to appeal the decision dated 24 June 2022.
- [11]Following the mention, the Commission issued directions to the parties in relation to the provision of written submissions in support of their positions with respect to the appeal.
- [12]Ms Paterson did not file any submissions in the Industrial Registry within the period required by the directions. Consequently, by email correspondence dated 7 September 2022, the Industrial Registry requested Ms Paterson to advise the Commission as to whether she wished to file any written submissions in support of her appeal. No reply was received from Ms Paterson. Ms Paterson has not filed a notice of discontinuance. As a result the appeal remains on foot despite Ms Paterson's failure to comply with the directions with respect to the provision of submissions.
- [13]The appeal is made pursuant to s 197 of the PS Act, which provides that an appeal under Ch. 7, Pt. 1 of the PS Act is to be heard and determined under Ch. 11 of the Industrial Relations Act 2016 (Qld) ("the IR Act") by the Queensland Industrial Relations Commission.
- [14]Sections 562B(2) and (3) of the IR Act, which commenced operation on 14 September 2020, replicate the now repealed ss 201(1) and (2) of the PS Act.[1] Section 562B(3) of the IR Act provides that the purpose of an appeal is to decide whether the decision appealed against was fair or reasonable. Accordingly, the issue for my determination in this appeal is whether the decision is fair and reasonable.
- [15]As an IRC Member, I must decide the appeal by reviewing the decision appealed against. The word "review" has no settled meaning and, accordingly, it must take its meaning from the context in which it appears.[2] An appeal under Ch. 7, Pt. 1 of the PS Act is not by way of re-hearing but, rather, involves a review of the decision arrived at and the decision-making process associated with it.[3]
- [16]However, before I consider the substance of the appeal, I must be satisfied that the appeal is one which is able to be heard.
Jurisdictional objection
- [17]The Department raises two jurisdictional objections to the appeal as follows:
Jurisdiction Objection
- 3.Ms Paterson's Appeal is misconceived. Just as there is no 'decision' made under clause 6.6 of the Directive 16/20 - Suspension (Directive) (Attachment 1), there is no 'decision' made under clause 6.10 of the Directive. Clause 6.6 and clause 6.10 merely set out the consequences of when an employee's suspension ends. There is no decision made under clause 6.6 or clause 6.10 - the application of these clauses is determined by the factual circumstances.
- 4.If this is the case, the Commission does not have jurisdiction to hear Ms Paterson's Appeal.
- 5.If the Appellant, in the alternative, purports the appeal grounds instead relate to the decision to suspend her employment without renumeration, the Department submits that as the decision occurred on 27 January 2022, it is therefore significantly out of time.
- [16]Section 194(1)(bb) of the PS Act relevantly identifies the decisions against which appeals may be made as follows:
194 Decisions against which appeals may be made
- (1)An appeal may be made against the following decisions -
- (bb)a decision to suspend a public service employee without entitlement to normal remuneration under s 137 (a suspension without pay decision).
- [17]Directive 16/20 - Suspension Directive ('Directive 16/20) came into effect on 25 September 2020. The purpose of Directive 16/20, amongst other things, is to outline the procedures relating to suspension.
- [18]The Cancellation of Suspension Decision confirmed that in accordance with cl 6.10 of the Directive 16/20, Ms Paterson would not be repaid for the period she was suspended without pay. This is because Ms Paterson was not compliant with Direction 1/21 and for the reasons outlined in the letter dated 24 June 2022.
- [19]I consider that the Cancellation of Suspension Decision is an appealable decision as it is a decision made about how Ms Patterson was treated purportedly in reliance on Directive 16/20. That decision was made on 24 June 2022 and therefore was not filed out of time.
- [20]Accordingly, I do not accept the jurisdictional objections raised by the Department.
Consideration
- [21]Clause 6.6 of Directive 16/20 provides that:
- 6.6An employee must be reimbursed for remuneration the employee does not receive during the employee’s suspension if a decision on discipline has been made that does not result in termination of their employment.
- [22]Clause 6.10 of Directive 16/20 provides that:
- 6.10If the employee was not available to work during the period of suspension for reasons other than being suspended (for example, due to being detained in a corrective services facility), then the amount repaid to the employee must be less the total number of days that the employee was not available to work during the period of suspension.
- [23]With respect to cl 6.6 and cl 6.10, Ms Paterson has submitted her reasons in her Appeal Notice as set out in paragraph [9] of this Decision.
- [24]Relevantly, no decision on discipline has been made with respect to Ms Paterson's matter. Whilst Ms Paterson is subject to a disciplinary process that process is yet to resolve. Accordingly, the reason for the cancellation of the suspension was not because of a decision on discipline but, rather, because of the revocation of the Chief Health Officer's Direction[4]. Consequently, cl. 6.6 of Directive 16/20 does not apply to the factual circumstances of this matter.
- [25]Further, Ms Paterson was not available to work during the period of her suspension as she had not complied with the then necessary requirements to work. Ms Paterson was suspended without pay due to her failure to comply with Direction 1/21. Ms Paterson's submissions do not contest the lawfulness of Direction 1/21 or the directions issued by the Chief Health Officer. Rather, Ms Patterson contends that she was ready, willing and able to work during the period of her suspension, However the fact is that Ms Paterson was not able to establish that she had complied with the necessary requirements, as set out in Direction 1/21, to work. Indeed, those matters are the very reason why Ms Paterson had been suspended in the first place.
- [26]In the circumstances, I consider the decision to not reimburse Ms Paterson for the period of her suspension was fair and reasonable.
- [27]I make the following order:
Order
The decision appealed against is confirmed.
Footnotes
[1]See the Public Service and Other Legislation Amendment Act 2020 (Qld).
[2]Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245, 261 (Mason CJ, Brennan and Toohey JJ).
[3]Goodall v State of Queensland (Unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018).
[4]COVID-19 Vaccination Requirements for Workers in a High-Risk Setting Direction (No 2).