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  4. Hogeling v State of Queensland (Queensland Corrective Services) - [2022] QIRC 493

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Hogeling v State of Queensland (Queensland Corrective Services)[2022] QIRC 493

Hogeling v State of Queensland (Queensland Corrective Services)[2022] QIRC 493

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Hogeling v State of Queensland (Queensland Corrective Services) [2022] QIRC 493

PARTIES:

Hogeling, Jesse Johnathan

(Appellant)

v

State of Queensland (Queensland Corrective Services)

(Respondent)

CASE NO:

PSA/2022/669

PROCEEDING:

Public Service Appeal - Appeal against a fair treatment decision

DELIVERED ON:

22 December 2022

MEMBER:

Hartigan DP

HEARD AT:

On the papers

ORDER:

Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016, the decision appealed against is confirmed.

CATCHWORDS:

PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – public service appeal – appeal against a fair treatment decision – where appellant contends that they were not afforded natural justice during the disciplinary process – where appellant submits that the decision is unfair and unreasonable – whether decision was fair and reasonable – decision appealed against confirmed.

LEGISLATION:

Industrial Relations Act 2016 (Qld) s 562B, s 562C

Public Service Act 2008 (Qld) s 197

COVID-19 Vaccination Requirements for Workers in a high-risk setting Direction (No. 2)

CASES:

Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245, 261 (Mason CJ, Brennan and Toohey JJ).

Goodall v State of Queensland (Unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018).

Reasons for Decision

Introduction

  1. [1]
    Mr Jesse Johnathan Hogeling is employed by the State of Queensland (Queensland Corrective Services) ('the Department') as a Custodial Corrections Officer at Capricornia Correctional Centre.
  1. [2]
    This appeal has been commenced in the context of Mr Hogeling allegedly failing to comply with a direction, which required Mr Hogeling to comply with the requirements of the COVID-19 Vaccination Requirements for Workers in a high-risk setting Direction (No. 2) ('Second CHO Direction') concerning the mandatory COVID-19 vaccination.
  1. [3]
    On 11 December 2021, the COVID-19 Vaccination Requirements for Corrective Services Facilities Direction ('Direction CHO') was issued which required that workers in a corrective services facility receive a first dose of a COVID-19 vaccine by 17  December  2021 and a second dose of a COVID-19 vaccine by 23 January 2022, unless the worker has a valid exemption.
  1. [4]
    On 4 February 2022, Direction CHO was replaced by the COVID-19 Vaccination Requirements for Workers in a high-risk setting Direction (No. 2) ('Second CHO Direction') which maintained the requirement for staff who work or enter a corrective services facility to have received two doses of a COVID-19 vaccine.
  1. [5]
    By letter dated 22 December 2021, the Department put an allegation associated with Mr  Hogeling's failure to receive a first dose of a COVID-19 vaccine and had determined to suspend Mr Hogeling from duties on normal remuneration pursuant to 137(1)(b) of the Public Service Act 2008 (Qld) ('PS Act') up to and including 26 March 2022. The Department also advised Mr Hogeling that they were considering suspending him without pay and provided Mr Hogeling twenty-one (21) days to respond as to why he should not be suspended without pay.
  1. [6]
    On 12 January 2022, Mr Hogeling responded as to why he should not be suspended without pay.
  1. [7]
    On 17 March 2022, the Department put another allegation, associated with Mr Hogeling's failure to comply with the second CHO Direction, to Mr Hogeling for his response.  Specifically, it was alleged that Mr Hogeling had not received the prescribed doses of a COVID-19 vaccine. 
  1. [8]
    On 3 April 2022, Mr Hogeling provided a response to the allegation.
  1. [9]
    By letter dated 21 June 2022, the Department advised Mr Hogeling that he would remain suspended from duties on normal remuneration up to and including 26 July 2022. 
  1. [10]
    By letter dated 29 June 2022, the Department advised Mr Hogeling that the allegation was substantiated, and that the Department was proposing termination as disciplinary action. The Department also provided Mr Hogeling with seven days to show cause why disciplinary action should not be taken ('the decision').
  1. [11]
    By notice of appeal filed on 15 July 2022, Mr Hogeling appeals the decision dated 29 June 2022. Mr Hogeling relies on the following matters in support of his appeal:
  1. The Decision Maker did not clarify the Commissioner's statement which is in question, nor did the Decision Maker indicate whether the statement has already been adhered to
  2. The Decision Maker has made an incorrect assumption that has negatively skewed my response
  3. The Decision Maker has not acknowledged that I had made an attempt to be compliant with the Directive prior to the decision to suspend
  4. The Decision Maker has made a claim that is appropriate when the response is read in the correct context.
  1. [12]
    The appeal is made pursuant to s 197 of the PS Act, which provides than 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.
  1. [13]
    Sections 562B(2) and (3) of the IR Act, which commenced operation on 14 September 2020, replicates 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.
  1. [14]
    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]
  1. [15]
    For the reasons contained herein, I have found that the decision was fair and reasonable

The decision

  1. [16]
    The decision relates to an allegation put by the Department on 17 March 2022 to Mr  Hogeling regarding his alleged conduct as follows:

You have contravened the COVID-19 Vaccination requirements for Corrective Services Facilities Directions issued by the Commissioner of Queensland Corrective Service by failing to receive the prescribed doses of a COVID-19 vaccination.

  1. [17]
    The decision maker provided the following reasons in support of the decision:
  1. I am satisfied that the Commissioner's Direction is reasonable and lawful.
  1. You do not dispute that you are a public service employee. In your Response you confirm you are a custodial Correctional Officer (CCO) at Capricornia Correctional Centre (CapCC). Being satisfied you are employed as a CCO in a correctional centre with QCS, I find the Commissioner's Direction applies to you.
  1. For completeness, having regard to the fact that the vaccination requirements were outlined by Palaszczuk government on 30 November 2021 and brought to the attention of QCS employees by the Commissioner and A/Assistant Commissioner Chee on that date, I am also satisfied that you had sufficient notice of the Commissioner's Direction.
  1. Having regard to the information outlined in your Response, I am satisfied that you have not received the COVID-19 vaccinations as required by the Commissioner's Direction. You do not deny this in your Response.
  1. You have not provided any evidence that you are a participant in a vaccine trial. You are therefore not exempted from the vaccination requirements under the Commissioner's Direction on that basis.
  1. You have provided evidence of a temporary medical contraindication, valid from 29 March to 4 May 2022. Accordingly, I find that you had a temporary medical contraindication which exempted you from the vaccination requirements for the period 29 March to 4 May 2022.
  1. You submit that you tested positive to COVID-19 by RAT test on 4 January 2022, and at that stage you were unable to obtain a medical contraindication due to the guidelines at that stage requiring a positive PCR test.
  1. I am prepared to accept that you tested positive to COVID-19 by RAT test on 4 January 2022.
  1. However, under the Commissioner's Direction you were required to have had a first dose of a COVID-19 vaccination by 17 December 2020, which was prior to when you contracted  COVID-19. You had been on notice of that requirement since 30 November 2020.
  1. Regardless of your temporary medical contraindication exemption, your Response indicates that you had, and continue to have, no intention of being vaccinated. Rather, you submit you should be permitted to seek alternative duties that do not include working at a correctional centre.
  1. I am therefore satisfied that you have contravened a direction issued by the Commissioner of QCS, being a responsible person.
  1. The next matter to be determined by me, therefore, is whether you have a reasonable excuse for contravening the Commissioner's Direction.

Reasonable excuse – alternative duties

  1. In your Response you submit that you believe that a reasonable excuse exists as the Commissioner, in a broadcast on 30 November 2021, stated 'We respect individual choice and know there will be some officers in high-risk settings who may not wish to be vaccinated. In limited instances, officers may be unable to be vaccinated for medical reasons. We will work with all officers to explore options to keep them and our workplace safe'.
  1. You submits that 'As the Commissioner's statement has told staff they could remain unvaccinated while he explored other options, I believe a reasonable excuse exists until such an attempt is made and communicated to myself'.
  1. I reject your view that the Commissioner's statement in the broadcast 'told staff they could remain unvaccinated while he explored other options'. The statement refers to working with officers to 'explore options to keep them and our workplace safe'. On any reasonable interpretation of the statement, it does not indicate that officers could remain unvaccinated whilst QCS explored options to keep officers and the workplace safe.
  1. I also note that the Commissioner's statement in the broadcast does not state that QCS will work with officers to find alternative duties for officers who do not wish to be vaccinated. Nor does it commit, or oblige, QCS to explore or find alternative duties for all officers. Exploring options to keep officers and the workplace safe does not, as your Response appears to contend, equate to exploring alternative duties for officers.
  1. You have been advised int the suspension decisions that A/Deputy Commissioner Shaddock and myself, when respectively making the suspension decisions, considered that performance of alternative duties whilst the allegation against you is on foot is not appropriate having regard to the obligation to comply with lawful and reasonable directions from your employer.
  1. For these reasons, I am not satisfied that the Commissioner's statement in the broadcast constitutes a reasonable excuse for you failing to receive COVID-19 vaccinations as required by the Commissioner's Direction, pending exploration of alternative duties.

Medical exemption – expired contraindication

  1. I accept you had a temporary medical contraindication exemption from the vaccine requirement for the period 29 March to 4 May 2022, due to having contracted COVID-19 in January 2022.
  1. However, I do not accept this as a reasonable excuse for your non-compliance with the Commissioner's Direction, because it remains that:
  1. you were non-compliant with the Commissioner's Direction from 17 December 2021 to when you contracted COVID-19 on 4 January 2022; and
  1. your Response indicates that you had no intention of receiving a COVID-19 vaccination, regardless of whether you had a temporary medical contraindication.

Submissions on why a disciplinary finding is not appropriate

  1. I refer to your submissions that disciplinary findings are not appropriate before alternative duties are considered. I disagree with this submission. Consideration of alternative duties is a matter for consideration in relation to the decision to suspend you from duty. It is not relevant to my decision to make disciplinary findings.

Concluding remarks

  1. For the reasons set out above, I find that you have no reasonable excuse for failing to comply with the Commissioner's Direction.
  1. I consider your failure to comply with the Commissioner's Direction without reasonable excuse to be incredibly serious. It constitutes insubordination, raises concerns about your ability to work in a hierarchical organisation and it represents a serious breakdown in the employment relationship.

On the basis of my findings in relation to Allegation 1, I have determined that pursuant to section 197(1)(d) of the PS Act, you have contravened, without reasonable excuse, a direction given to you as a public service employee by a responsible person.

  1. [18]
    The decision maker also considered the effects of the decision on Mr Hogeling's human rights as follows:

Human Rights

The human rights that are potentially impacted by the decision to make disciplinary findings against you are:

  • the right to privacy and reputation; and
  • the right to taking part in public life.

I acknowledge that my disciplinary findings may limit your humans rights as to privacy and reputation as they will form part of your formal disciplinary history and will need to be disclosed in certain circumstances and this may have a negative impact on your prospects of obtaining employment elsewhere in the public service.

Ultimately, in my view, the public interest in ensuring that you perform your duties diligently, including following Commissioner Directions, outweigh the impacts on your human rights.

Relevant legislation

  1. [19]
    Section 194 of the PS Act provides for decisions against which appeals may be made and relevantly includes:

194 Decisions against which appeals may be made

  1. (1)
    An appeal may be made against the following decisions –

…

(eb) a decision a public service employee believes is unfair and unreasonable (a fair treatment decision);

  1. [20]
    Section 187 of the PS Act sets out the grounds for discipline and disciplinary action generally as follows:

187 Grounds for discipline

  1. (1)
    A public service employee’s chief executive may discipline the employee if the chief executive is reasonably satisfied the employee has—
  1. (a)
    engaged in repeated unsatisfactory performance or serious under performance of the employee’s duties, including, for example, by performing duties carelessly, incompetently or inefficiently; or
  1. (b)
    been guilty of misconduct; or
  1. (c)
    been absent from duty without approved leave and without reasonable excuse; or
  1. (d)
    contravened, without reasonable excuse, a direction given to the employee as a public service employee by a responsible person; or
  1. (e)
    used, without reasonable excuse, a substance to an extent that has adversely affected the competent performance of the employee’s duties; or

(ea) contravened, without reasonable excuse, a requirement of the chief executive under section 179A(1) in relation to the employee’s appointment, secondment or employment by, in response to the requirement—

  1. (i)
    failing to disclose a serious disciplinary action; or
  1. (ii)
    giving false or misleading information; or
  1. (a)
    contravened, without reasonable excuse, a provision of this Act; or
  1. (b)
    contravened, without reasonable excuse, a relevant standard of conduct in a way that is sufficiently serious to warrant disciplinary action.

…

  1. [21]
    Paragraph 11 of the second CHO Direction stipulates that all current employees and contractors, who work in or enter a high-risk setting, are required to meet the mandatory vaccination requirements, as follows:

PART 1 – WORKERS IN A HIGH-RISK SETTING

Worker

  1. An employer whose employees or contractors work in a high-risk setting must notify workers of the COVID-19 vaccination requirements and take all reasonable steps to ensure that a worker does not enter and remain in, work in, provide services or volunteer in a high-risk setting if the person does not meet the COVID-19 vaccination requirements or have a medical contraindication for COVID-19 vaccines.
  1. [22]
    Part 3 of the second CHO Direction provides exceptions in circumstances where a worker has not received the prescribed doses of a COVID-19 vaccine, as relevantly summarised:

The worker:

  1. (a)
    has a medical contraindication;
  2. (b)
    is a participant in a COVID-19 vaccine trial;
  3. (c)
    is required to respond to critical workforce shortages;
  4. (d)
    is required to respond to critical support needs;
  5. (e)
    is required to respond to an emergency; or
  6. (f)
    is required to enter a high-risk setting for the purposes of law enforcement.
  1. [23]
    Schedule 2 of the second CHO Direction provides that a corrective services facility is a high-risk setting as follows:

SCHEDULE 2 – HIGH-RISK SETTING

         …

A corrective services facility listed in Schedule 4 of the Corrective Services Act 2006, specifically

  • a prison
  • a community corrections centre
  • a work camp
  • a temporary corrective services facility declared under section 268(2).

…

Whether the decision was fair and reasonable

  1. [24]
    As noted above, the role of the Commission in an appeal such as this, is to conduct a review of the decision to determine whether it is fair and reasonable.
  1. [25]
    Mr Hogeling contends that the decision is not fair and reasonable. Mr Hogeling's written submissions are largely in the same terms as the written submissions that were attached to his appeal notice.
  1. [26]
    Mr Hogeling's submissions in relation to the appeal have been categorised as follows:
  1. (a)
    clarification of the Commissioner's statement;
  1. (b)
    assumptions of the decision maker;
  1. (c)
    attempts to be compliant with direction prior to suspension;
  1. (d)
    intention to be vaccinated; and
  1. (e)
    external circumstances for consideration.
  1. [27]
    The Department submits that the decision is fair and reasonable. In this regard, the Department contends that the requirement to be vaccinated is based on the second CHO Direction regarding workers in a corrective services facility and that Mr Hogeling is captured by this direction on the basis that he is a staff member working in a corrective services facility.
  1. [28]
    I will consider the appeal within the categories set out above.

Clarification of the Commissioner's statement

  1. [29]
    The appeal notice and written submissions filed by Mr Hogeling indicate his contention that the decision maker has failed to 'provide the correct interpretation of the Commissioner's statement'. In particular, Mr Hogeling submits that 'it is important that [he] be made aware as to what the Commissioner implied in his statement'. Mr Hogeling is referring to a statement made, in a broadcast on 30 November 2021, by the Commissioner of Queensland Corrective Services, Mr Paul Stewart. This statement is set out below:

We respect individual choice and know there will be some officers in high-risk settings who may not wish to be vaccinated. In limited instances, officers may be unable to be vaccinated for medical reasons. We will work with all officers to explore options to keep them and our workplace safe.

  1. [30]
    Mr Hogeling submits that his interpretation of the Commissioner's statement is that the Commissioner respects individual choice and will work with all officers who do not wish to be vaccinated to explore alternative options to keep them and the workplace safe. Further, Mr Hogeling submits that there is a possibility that he could remain unvaccinated in his role while he pursues other redeployment options.
  1. [31]
    The Department submits that there is no obligation on the decision maker to provide an 'interpretation' of the Commissioner's statement or to demonstrate that the Department has 'adhered' to the Commissioner's statement.
  1. [32]
    As noted in the extract from the decision referred to above, the decision maker had regard to Mr Hogeling's purported reliance on the Commissioner's statement and dismissed the statement as providing a reasonable excuse for the failure of Mr Hogeling to comply with the Commissioner's direction.
  1. [33]
    I consider that it was open for the decision maker to draw this conclusion based on the clear wording of the Commissioner's statement, the Commissioner's direction and the allegation that was put to Mr Hogeling during the show cause process.
  1. [34]
    One wonders how Mr Hogeling drew the inference that he relies on from the wording of the Commissioner's statement, particularly within the context of the Commissioner issuing the Commissioner's direction. However, if Mr Hogeling did draw an erroneous inference from the Commissioner's statement, that is ultimately a matter that Mr  Hogeling must bear responsibility for.

Assumptions of the decision maker

  1. [35]
    Mr Hogeling submits that the decision maker incorrectly interpreted his response during the show cause process. In particular, Mr Hogeling contends that he 'did not equate the Commissioner's statement to exploring alternative duties for their officers' and that he made the decision to pursue alternative duties on his own accord.
  1. [36]
    Mr Hogeling submitted that it would not be appropriate for the Department to proceed with the substantiation of the disciplinary finding until the Department adhered to the Commissioner's statement and attempted to explore options that were available.
  1. [37]
    As noted above, it appears that Mr Hogeling misunderstood the effect of the Commissioner's statement. Any consequence that follows from that misunderstanding, including Mr Hogeling's assumption that he may be able to avoid complying with the Commissioner's direction if he finds alternative duties, are his errors. As noted above, I have found that it was reasonable for the decision maker to conclude that the Commissioner's statement did not provide a reasonable excuse for Mr  Hogeling's        non-compliance with the Direction.

Attempts to be compliant with direction prior to suspension

  1. [38]
    Mr Hogeling submits that the decision maker failed to recognise his attempts to pursue alternative duties before he was suspended on 22 December 2021.
  1. [39]
    Although the Department acknowledge that Mr Hogeling may have made attempts to find alternative duties, these attempts are not relevant to determining whether the decision is fair and reasonable and that Mr Hogeling's 'pursuit' of alternative duties is not an attempt to comply with the second CHO Direction. Further, considering the seriousness of the allegations against Mr Hogeling, the Department state that it was not appropriate for the Appellant to undertake alternative duties.
  1. [40]
    Mr Hogeling refers to attempts he made to find alternative duties prior to the decision being made to suspend him from duty.
  1. [41]
    The decision to suspend Mr Hogeling is not the decision under appeal. Accordingly, any steps Mr Hogeling made in an attempt to avoid being suspended from duty are not relevant to the decision being appealed.
  1. [42]
    Mr Hogeling also makes a submission that his attempts to find alternative duties was an attempt by him to comply with the Commissioner's direction. I do not accept that after reading the Commissioner's direction that Mr Hogeling could have reasonably considered that such a course would permit him to avoid the vaccination requirements. Mr Hogeling is responsible for leading himself into error in this regard.

Intention to be vaccinated

  1. [43]
    Mr Hogeling disputes the decision maker's finding that he had no intention of receiving a COVID-19 vaccination, regardless of whether he had a temporary medical contraindication.  Further, Mr Hogeling submits that he has been unable to make a decision regarding whether or not to receive a COVID-19 vaccination because of the Department's 'failure' to communicate with him regarding 'other options available'.
  1. [44]
    I consider the decision maker's finding that Mr Hogeling had 'no intention of being vaccinated' to be open on the material before the decision maker. Mr Hogeling has not produced any evidence of compliance with the Direction to be vaccinated and has, instead, been focused on attempts to find alternative duties which would, at least in his view, avoid the requirement to be vaccinated. Relevantly, neither during the show cause process or during this appeal does Mr Hogeling dispute the decision maker's statement on the basis that it is incorrect.

External circumstances for consideration

  1. [45]
    Although separate to the appeal filed on 15 July 2022, Mr Hogeling submits that the suspension process was flawed. He argues that had the suspension process not been flawed the disciplinary finding and action could have been avoided.
  1. [46]
    The Department submits that there has been no procedural unfairness regarding the decision to suspend Mr Hogeling from duty. Further, whilst Mr Hogeling was provided with the opportunity to respond as to why he should not be suspended without pay, the Department have not proceeded with this show cause process. As a result, Mr Hogeling has been suspended with remuneration since 22 December 2021.
  1. [47]
    The process leading to the decision to suspend Mr Hogeling is not relevant to my consideration of his appeal of the disciplinary finding decision. Accordingly, I do not consider that the matters Mr Hogeling raises with respect to the suspension process support a conclusion that the decision subject of this appeal is not fair and reasonable.
  1. [48]
    For these reasons, I dismiss the appeal and confirm the decision appealed.

Order

  1. [49]
    Accordingly, I make the following order:

Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016, 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).

Close

Editorial Notes

  • Published Case Name:

    Hogeling v State of Queensland (Queensland Corrective Services)

  • Shortened Case Name:

    Hogeling v State of Queensland (Queensland Corrective Services)

  • MNC:

    [2022] QIRC 493

  • Court:

    QIRC

  • Judge(s):

    Hartigan DP

  • Date:

    22 Dec 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
Brandy v Human Rights & Equal Opportunity Commission (1995) 183 CLR 245
2 citations
Jump To
Cite 1 - (1995) 183 CLR 245
Cite 2 - (1995) 183 CLR 245
Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10
2 citations
Jump To
Cite 1 - [1995] HCA 10
Cite 2 - [1995] HCA 10
Goodall v State of Queensland [2018] QSC 319
2 citations
Jump To
Cite 1 - [2018] QSC 319
Cite 2 - [2018] QSC 319

Cases Citing

No judgments on Queensland Judgments cite this judgment.

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