Reh v State of Queensland (Department of Education)
[2023] QIRC 149
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- Reh v State of Queensland (Department of Education)[2023] QIRC 149
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Reh v State of Queensland (Department of Education)[2023] QIRC 149
Reh v State of Queensland (Department of Education)[2023] QIRC 149
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Reh v State of Queensland (Department of Education) [2023] QIRC 149 |
PARTIES: | Reh, Ely May (Appellant/Applicant) v State of Queensland (Department of Education) (Respondent) |
CASE NOS.: | PSA/2022/919 B/2022/75 B/2022/76 B/2022/79 |
PROCEEDINGS: | Public Service Appeal, Application for order to stop bullying, General Application and Application to recover unpaid wages |
DELIVERED ON: | 26 May 2023 |
MEMBER: | Merrell DP |
HEARD AT: | On the papers |
ORDERS: | The orders contained in paragraph [42] of these reasons for decision. |
CATCHWORDS: | PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – PUBLIC SERVICE APPEAL – Appellant employed by the State of Queensland, in the Department of Education, as a Cleaner at the Gin Gin State School and the Gin Gin State High School – in December 2021 the Director-General of the Department issued Employment Direction 1/21 – COVID‑19 Vaccinations – in March 2022 the Director-General issued Employment Direction 1/22 – COVID‑19 Vaccinations – both Directions required the Appellant to have received at least a first dose of a COVID-19 vaccine by 17 December 2021 and the prescribed number of doses of a COVID‑19 vaccine by 23 January 2022 unless exempted – Appellant refused to be vaccinated – Appellant suspended without remuneration as from 27 January 2022 until 30 June 2022 – after a show cause process, the Appellant was the subject of disciplinary action whereby the Appellant had imposed on her a reduction in remuneration from QC2‑04 to QC2‑03 for a period of 18 weeks and a reprimand – Appellant appealed against the disciplinary action decision – Appellant started the appeal against disciplinary action 11 days out of time – arising out of the same facts as the disciplinary action decision appeal, the Appellant started an Application for an order to stop bullying, a General Application by which various forms of relief were sought and an Application to recover unpaid wages – the disciplinary action decision was fair and reasonable – the disciplinary action decision is confirmed – all other applications are misconceived and are dismissed |
LEGISLATION: | Industrial Relations Act 2016, s 477, s 562C and s 564 Public Service Act 2008, s 187 Work Health and Safety Act 2011, s 48 |
CASES: | Brasell-Dellow & Ors v State of Queensland, (Queensland Police Service) & Ors [2021] QIRC 356 Miller v State of Queensland (Department of Education) [2022] QIRC 316 |
Reasons for Decision
Introduction
- [1]Ms Ely May Reh ('the Appellant') is employed as a Cleaner at the Gin Gin State School and at the Gin Gin State High School. The Appellant is employed by the State of Queensland through the Department of Education ('the Department').
- [2]In December 2021, the Director-General of the Department issued Employment Direction 1/21 - COVID‑19 Vaccinations, and in March 2022 the Director‑General issued Employment Direction 1/22 - COVID‑19 Vaccinations ('the Employment Directions'). The Employment Directions, because of the position the Appellant held within the Department working in a State School and in a State High School (which in the Employment Directions were stated to be high-risk settings), required the Appellant to have received at least a first dose of a COVID-19 vaccine by 17 December 2021 and to have received the prescribed number of doses of a COVID‑19 vaccine by 23 January 2022, unless she was exempted from the operation of the Employment Directions. The Appellant did not comply with the requirement that she be vaccinated.
- [3]By letter dated 27 January 2022 from Mr Tim Gall, Executive Director, HR Shared Services of the Department, the Appellant was suspended without remuneration (following a period of being suspended with remuneration) from 27 January 2022 to 30 June 2022 ('the suspension decision').
- [4]By letter dated 22 August 2022 from Ms Anne Crowley, Assistant Director‑General, Human Resources of the Department, the Appellant was informed that disciplinary action was taken against her. The disciplinary action taken was a reduction in the Appellant's remuneration from QC2-04 to QC2-03, for a period of 18 weeks, and a reprimand ('the disciplinary action decision'). The reason the disciplinary action was taken was due to an earlier disciplinary finding decision conveyed by Ms Crowley to the Appellant by letter dated 1 August 2022 ('the disciplinary finding decision'). The disciplinary finding decision was that because the Appellant had failed to receive the required doses of a COVID‑19 vaccine, by the required dates as required by the Employment Directions, the Appellant contravened, without reasonable excuse, a direction given to her as a public service employee by a responsible person within the meaning of s 187(1)(d) of the Public Service Act 2008 ('the PS Act').
- [5]As a consequence of the disciplinary action decision, the Appellant, on 23 September 2022:
- started a public service appeal, pursuant to ch 7, pt 1 of the PS Act ('the public service appeal');
- filed an Application for an Order to Stop Bullying ('the bullying application'); and
- filed a General Application which seeks various forms of relief including, as best as I can make out, a decision setting aside the suspension decision, a decision removing the disciplinary action from the Appellant's personal file and a decision setting aside the disciplinary action decision ('the general application').
- [6]On 6 October 2022, the Appellant made an application to recover unpaid wages in respect of the period for which she was suspended without pay ('the unpaid wages application').
- [7]From the submissions the Appellant has made to this Commission about the abovementioned proceedings, there are a number of reasons why the Appellant refused to comply with the direction contained in the Employment Directions to be vaccinated against COVID-19. As best as I can make out, the principal reasons seem to be that the Employment Directions were not lawful, the COVID‑19 vaccines were unsafe and the COVID‑19 vaccines do not prevent persons from getting COVID-19.
- [8]Both parties filed written submissions in relation to all of the proceedings commenced by the Appellant.
- [9]For the reasons that follow:
- in respect of the public service appeal, the disciplinary action decision is confirmed;
- the bullying application is dismissed;
- the general application is dismissed; and
- the unpaid wages application is dismissed.
The public service appeal
- [10]The Department submitted that because the Appellant's public service appeal was started 11 days out of time and, in the absence of any acceptable explanation for her delay, the Commission should not, pursuant to s 564(2) of the Industrial Relations Act 2016 ('the IR Act') allow the Appellant to start her public service appeal within a longer period.
- [11]The Appellant should have started her public service appeal on or before 12 September 2022. The Appellant started her public service appeal on 23 September 2022. The reason given by the Appellant for the delay was that she attempted to commence her appeal on 12 September 2022 but filed the wrong form and that it was only after information provided by the Industrial Registrar that the Appellant commenced a public service appeal using the correct form (Form 89).
- [12]It should be noted that at all relevant times the Appellant was being assisted by her husband. In these circumstances, I am of the view that there is an acceptable explanation for the Appellant's delay in commencing her public service appeal. Further, the Department has not pointed to any prejudice it will suffer if I allow the Appellant a further period of time in which to start her appeal. For these reasons, pursuant to s 564(2) of the IR Act, I allow the Appellant a further period of time until 23 September 2022 to start her public service appeal.
- [13]The Appellant appeals against the disciplinary action decision. In her submissions, a range of reasons as to why the disciplinary action decision was not fair and reasonable are given. As best as I can make out from those submissions, a summary of the principal reasons is:
- because the Appellant was a cleaner, working early morning and late afternoon split shifts, Monday to Friday, she was not working in a high-risk setting within the meaning of the Employment Directions;
- the Department did not consult with the Appellant, as required by the Work Health and Safety Act 2011, prior to the directions being given to her that she be vaccinated; and
- the COVID-19 vaccines approved by the Therapeutic Goods Administration ('the TGA') are unsafe, are ineffective and therefore no mandate for the vaccination was necessary.
- [14]The Department submitted that decisions by this Commission about factual circumstances similar to those that are at the centre of the Appellant's appeal confirm that COVID-19 vaccination mandates are lawful and reasonable and that there will be consequences for employees, including being suspended without remuneration and having disciplinary action taken against them, who fail to comply with the lawful and reasonable directions to be vaccinated.
- [15]The submission made by the Department is compelling.
- [16]In Miller v State of Queensland (Department of Education),[1] which was a case concerning an application for a cleaner employed in the Department for a further period of time to appeal against a decision to suspend the appellant in that case without remuneration, I relevantly stated:
- [32]Since the introduction of vaccination mandates by a number of State government departments in 2021, Members of this Commission have made a number of decisions, in public service appeals, dealing with employees to whom such a mandate applies and who, in the absence of applying for or being granted an exemption from compliance with such a mandate, have decided not to follow the lawful direction given to them to be vaccinated against COVID-19. The constant principle in those cases is that there will be consequences for employees who refuse to comply with a lawful direction given to them by the State as their employer. Those consequences may include being suspended without remuneration and, or in the alternative, having disciplinary action taken against them, including the termination of their employment.
- [33]In my view, the same principle applies in the present case. Ms Miller was given a lawful direction by her employer to be vaccinated against COVID-19. Ms Miller, on the material before me, has never applied for an exemption in respect of compliance with that direction. Ms Miller has refused to comply with the Direction. In those circumstances, it is fair and reasonable for the State to suspend her from her employment without paying her remuneration.
- [17]The Employment Directions specify that a school is a high-risk setting. Indeed, the Employment Directions specify that outside school hours care and vacation care are also high-risk settings. The Employment Directions state that they apply to all Departmental workers who attend '… a high-risk setting as part of their role or the services they provide' and that they also apply to '… identified staff within regional and central offices who are required to be present in a school as part of the work duties.' The Employment Directions define a 'worker' to include a person who is '… employed at a high-risk setting on a part‑time, casual or full-time basis.' The obvious purpose of the Employment Directions is to ensure that such workers who work in high-risk settings within the Department were vaccinated against COVID-19 so that if they caught the COVID‑19 virus, the effect on their health would be minimised so as to put the Department in the best position to ensure that it had sufficient staff to continue providing public education services at various facilities, including schools.
- [18]The Appellant has advanced no cogent reason that persuades me that the Employment Directions were other than lawful and reasonable. I am unaware of any decision of this Commission that has determined that COVID-19 vaccination mandates, such as the Employment Directions, are unlawful. Furthermore, I am presently unaware of any decision in any tribunal in Australia that has determined that such a mandate amounts to an unlawful direction by an employer. Certainly, the Appellant has not referred me to any such decision.
- [19]For the reasons I have referred to above, it is irrelevant that the Appellant worked early morning and late afternoon split shifts as a Cleaner at the two schools in which she was engaged. Furthermore, the Appellant submitted that the hours of work of cleaners could have been easily adjusted so that only one cleaner worked in one building at one time. Again, for the reason I have given above, namely, that the purpose of the mandate was to protect employees against the severe effects of the COVID-19 virus so that the Department was in the best position to ensure that it had sufficient staff to continue providing public education services at schools, such a submission misses the point of the reason for the Employment Directions.
- [20]The submission made by the Appellant that the Department failed to consult as required by the provisions of the Work Health and Safety Act 2011, such that the Employment Directions were not valid, equally lacks merit. This very issue was considered by a Full Bench of the Commission (Davis J, President, Vice President O'Connor and Deputy President Merrell) in Brasell-Dellow & Ors v State of Queensland, (Queensland Police Service) & Ors,[2] where it was held that pursuant to s 48 of the Work Health and Safety Act 2011, the required consultation need only be fulfilled to the extent that it was reasonably practicable,[3] and that where there was a very large workforce, it was not reasonably practicable to consult with every employee and the requirements to consult would be fulfilled if the consultation occurred with the unions covering that workforce.[4] In the present case, the Department submitted that it engaged in consultation with the unions that had relevant coverage of the employees engaged in the Department and that the Employment Directions were not the subject of any contention in respect of such consultation.
- [21]The Appellant then went on to make a range of submissions as to why the vaccines the subject of the Employment Directions were unsafe, unproven, and not necessary to deal with the COVID-19 pandemic. There is no merit in any of these submissions. Similar submissions have been made in various proceedings before this Commission and all such arguments have been rejected. The COVID-19 vaccines, the subject of the Employment Directions, were approved by the TGA. For that reason, there is no merit that, in general, the COVID-19 vaccines are unsafe or are ineffective. The Appellant, in her submissions, does not point to any medical evidence, specific to her, that would indicate there was a specific danger or risk to her health from her being vaccinated with any of the COVID‑19 vaccines.
- [22]In the end, these are the facts. The Employment Directions applied to the Appellant because she was a Cleaner employed in schools operated by the Department, which the Employment Directions defined to be high-risk settings. Those circumstances required the Appellant to be vaccinated with one of the COVID-19 vaccines approved by the TGA. The direction making that requirement, as contained in the Employment Directions, was lawful and reasonable. The Appellant failed to comply with that lawful and reasonable direction. As a consequence, she was liable for disciplinary action. Disciplinary action has been taken against the Appellant, namely, a reduction in remuneration from QC2-04 to QC2-03, for a period of 18 weeks, and a reprimand.
- [23]Given the Appellant's failure to comply with the lawful and reasonable direction to be vaccinated as required by the Employment Directions, the disciplinary finding decision was fair and reasonable. Furthermore, because of the disciplinary finding decision, the disciplinary action decision, in my view, was justifiable and was very fair in the circumstances of the Appellant's case. Indeed, it would have been open to Ms Crowley, given the circumstances of the Appellant's case, to have taken harsher disciplinary action against the Appellant.
- [24]For these reasons, I confirm the disciplinary action decision.
The bullying application
- [25]Pursuant to ch 7 of the IR Act, and relevantly to the facts of the present case, an employee will be bullied in the workplace if, while the employee is at work, an individual or group of individuals repeatedly behaves unreasonably towards the employee and the behaviour creates a risk to the health and safety of the employee. However, those provisions do not apply to reasonable management action carried out in a reasonable manner.
- [26]As best as I can make out from the Appellant's application for an order to stop bullying, her case is that the direction, as contained in the Employment Directions, that she be vaccinated against COVID-19, amounts to workplace bullying within the meaning of ch 7 of the IR Act.
- [27]This claim is misconceived.
- [28]It was clearly reasonable management action carried out in a reasonable manner for employees engaged in the Department, who worked in high-risk settings such as schools, to be vaccinated against COVID-19. This is because being vaccinated reduced the risk of severe health consequences for employees who caught the COVID-19 virus, such that if a number of employees did catch the COVID-19 virus, the Department would be in the best position to be able to maintain the number of staff required to ensure the continued provision of public education services.
- [29]For these reasons, the Appellant's bullying application is dismissed.
The general application
- [30]By this application, the Appellant seeks a number of orders.
- [31]The first is that the decision to suspend the Appellant without remuneration be set aside. I refuse to make such an order. The Appellant could have challenged the suspension decision by commencing an appeal under ch 7 of the PS Act. Such an appeal should have been commenced within 21 days of the Appellant receiving Mr Gall's letter dated 27 January 2022. The Appellant did not commence such an appeal. Given that the Appellant did not attempt to formally challenge the suspension decision in this Commission until nine months after the decision was made, then, as a matter of discretion, I will not interfere with that decision.
- [32]However, leaving those considerations behind, I would not, in any event, now set aside the suspension decision. For the same reasons given by Mr Gall in his letter, my view is that the suspension decision was fair and reasonable.
- [33]The purpose of the requirement for employees, such as the Appellant, to be vaccinated was for the protection of vulnerable persons and to mitigate against a sudden reduction in available workforce that would significantly affect the continuity of public education services. The Appellant did not comply with the direction to be vaccinated. Furthermore, Mr Gall was of the view that there were no other reasonable alternative duties that could be given to the Appellant, or other reasonable adjustments made in respect of the Appellant, to manage the risk that arose by virtue of her non-compliance with the Employment Directions. In addition, those facts gave rise to the circumstance where the Appellant would be subject to a disciplinary procedure and, for all those reasons, Mr Gall decided that it was not reasonable or appropriate to use public funds to allow the Appellant to continue to be paid while the disciplinary process was underway.
- [34]All the reasons given by Mr Gall to suspend the Appellant without remuneration were fair and reasonable. For these reasons, I would refuse to make any order setting aside the suspension decision.
- [35]Another order sought by the Appellant is the removal of the documents, about the disciplinary action taken against her, from her personal file. There is no reason why such an order should be made. Disciplinary action has been properly and fairly taken against the Appellant. The record of the disciplinary action should remain on her personal file.
- [36]A further order sought by the Appellant was that she should be reimbursed the remuneration she lost whilst suspended and the remuneration she lost as a consequence of the disciplinary action. For the reasons given earlier, both the suspension decision and the disciplinary action decision were fair and reasonable. There is no reason why those decisions should not stand.
- [37]For all these reasons, the general application is dismissed.
The unpaid wages application
- [38]Pursuant to s 477 of the IR Act, the Commission may make an order that an employer pay an employee's wages that are payable and unpaid.
- [39]The Appellant, as best as I can make out from this application, contends that she should be paid for the period that she was suspended without remuneration.
- [40]This application is misconceived. For the reasons I have given earlier, the suspension decision was fair and reasonable. That is to say, the suspension decision was lawful such that there are no wages payable and unpaid to the Appellant for the period during which she was suspended without remuneration.
- [41]For these reasons, the unpaid wages application is dismissed.
Orders
- [42]I make the following Orders:
- Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016, the disciplinary action decision appealed against in Case No. PSA/2022/919 is confirmed.
- The Application for an order to stop bullying in Case No. B/2022/75 is dismissed.
- The General Application for various orders in Case No. B/2022/76 is dismissed.
- The Application to recover unpaid wages in Case No. B/2022/79 is dismissed.