Gatongi v State of Queensland (Department of Education)
[2024] QIRC 233
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- Unreported Judgment
- Gatongi v State of Queensland (Department of Education)[2024] QIRC 233
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Gatongi v State of Queensland (Department of Education)[2024] QIRC 233
Gatongi v State of Queensland (Department of Education)[2024] QIRC 233
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Gatongi v State of Queensland (Department of Education) [2024] QIRC 233 |
PARTIES: | Gatongi, Monicah (Appellant) v State of Queensland (Department of Education) (Respondent) |
CASE NO: | PSA/2022/718 |
PROCEEDING: | Public Sector Appeal – Appeal against a fair treatment decision |
DELIVERED ON: | 19 September 2024 |
MEMBER: | Gazenbeek IC |
HEARD AT: | On the papers |
ORDER: |
|
CATCHWORDS: | PUBLIC SECTOR – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – PUBLIC SECTOR APPEAL – consideration under s 562A(3) of the Industrial Relations Act 2016 (Qld) whether to decline to hear appeal – where the appellant is employed by the respondent as a teacher – where the appellant failed to comply with the vaccination requirements contained in Employment Direction 1/21 – COVID-19 Vaccinations and Employment Direction 1/22 – COVID-19 Vaccinations – where the appellant was the subject of a disciplinary action decision to impose a reduction in renumeration and a reprimand – whether the Commission should continue to hear the appeal – where appeal attempts to re-agitate arguments already repeatedly found by the Commission to be without merit – appeal will not be heard |
LEGISLATION AND INSTRUMENTS: | Industrial Relations Act 2016 (Qld) ss 562A, 562B, 564 Public Sector Act 2022 (Qld) ss 129, 131, 133, 289, 324 Public Service Act 2008 (Qld) ss 187, 188, 194 (repealed) Employment Direction 1/21 – COVID-19 Vaccinations Employment Direction 1/22 – COVID-19 Vaccinations |
CASES: | Bakhash v State of Queensland (Department of Education) [2022] QIRC 362 Bowcock v State of Queensland (Department of Education) [2024] QIRC 028 Brasell-Dellow & Ors v State of Queensland (Queensland Police Service) & Ors [2021] QIRC 356 Currie (Murray) v State of Queensland (Department of Education) [2022] QIRC 269 Daley v State of Queensland (Department of Education) [2023] QIRC 277 Graf and Ors v State of Queensland (Department of Education) [2022] QIRC 451 Gundrum v State of Queensland (Queensland Health) [2022] QIRC 226 Miller v State of Queensland (Department of Education) [2022] QIRC 316 Parry v State of Queensland (Department of Education) [2024] QIRC 042 Reh v State of Queensland (Department of Education) [2023] QIRC 149 Rossiter v State of Queensland (Department of Education) [2024] QIRC 025 Sankey v State of Queensland (Department of Education) [2024] QIRC 197 Stacey v State of Queensland (Department of Education) [2024] QIRC 220 Tadeo v State of Queensland (Department of Education) [2022] QIRC 177 Thorley v State of Queensland (Department of Education) [2022] QIRC 133 Tilley v State of Queensland (Queensland Health) [2023] QIRC 262 |
Reasons for Decision
Background
- [1]Ms Monicah Gatongi (‘the Appellant’) is employed by the Department of Education (‘the Department’) as a Special Education Teacher at Redland District Special School.
- [2]The Department’s Employment Direction 1/21 – COVID-19 Vaccinations was issued in December 2021, followed by a revised Employment Direction 1/22 – COVID-19 Vaccinations in March 2022 (collectively, ‘the Direction’). The Direction applied to all Department workers whose role required any attendance in a ‘high-risk setting’, which included educational settings like Ms Gatongi’s workplace.[1]
- [3]It is not in dispute that Ms Gatongi opted not to receive any COVID-19 vaccinations, and that Ms Gatongi did not hold an approved exemption from the application of the Direction.
Disciplinary process
- [4]On 10 June 2022, Ms Gatongi was informed that she may be liable to disciplinary findings, pursuant to s 187(1)(d) of the Public Service Act 2008 (Qld), on the grounds that she had contravened, without reasonable excuse, the Direction to receive the prescribed number of doses of a COVID-19 vaccine and/or show evidence of receiving such doses.[2] In that same correspondence (‘the first show cause notice’), Ms Gatongi was invited to show cause why disciplinary findings should not be made against her.
- [5]On 22 June 2022, Ms Gatongi responded to the first show cause notice. In short, she submitted that:
- she has not received any COVID-19 vaccinations “and refuses to do so in the future”;
- her “religious convictions prohibit [her] from partaking in a vaccine tested and/or developed from aborted foetuses as doing so makes [her] complicit in an action that violates [her] strongly held beliefs in the sanctity of human life”;
- she requests exemption from the Direction on the basis of her religious beliefs, and a flexible work arrangement allowing her to undertake normal duties while working from home; and
- if a flexible work arrangement is not granted, she alternatively requests that she continue her employment as an unvaccinated worker in accordance with clause 27 of the Chief Health Officer’s directions.
- [6]On 1 August 2022, Ms Anne Crowley (Assistant Director-General, Human Resources) wrote to Ms Gatongi informing her that she had determined the allegation to be substantiated on the balance of probabilities (‘the second show cause notice’). Notably, Ms Crowley found that “the Public Health Direction, and therefore the Direction, does not provide for religious or spiritual exemptions” and that the Appellant’s submissions in that regard do not form a reasonable excuse for her non-compliance with the Direction.[3]
- [7]Having made disciplinary findings against Ms Gatongi in the second show cause notice, Ms Crowley proposed the disciplinary action of a reduction in remuneration for a period of 20 weeks and a reprimand. Ms Gatongi was afforded seven days to show cause why the proposed disciplinary action should not be taken.
- [8]In her response of 4 August 2022 to the second show cause notice, Ms Gatongi submitted, in essence, that:
- she has already gone without pay for more than 25 weeks as a result of her non-compliance with the Direction;
- her absence from work while suspended has already resulted in being ineligible for an incremental pay point increase, and being prevented from applying for promotional opportunities;
- any additional financial loss could jeopardise both herself and her family;
- she has already been ostracised from her peers, community and the Department as a result of her beliefs about vaccination;
- it was never her intention to be non-compliant with the Direction;
- the adverse consequences of her non-compliance with the Direction has already constituted a “very severe and serious penalty” and should be considered when imposing any further disciplinary action; and
- no further action should be taken against her.
- [9]On 22 August 2022, Ms Crowley informed Ms Gatongi of her decision to impose the disciplinary action, pursuant to s 188(1) of the Public Service Act 2008 (Qld), of a reduction on renumeration for a period of 18 weeks, and a reprimand (‘the disciplinary action decision’).
- [10]This disciplinary action decision of 22 August 2022, is the subject of Ms Gatongi’s appeal filed on 25 August 2022.
Previous Commission proceedings
- [11]Several public sector appeals, including Ms Gatongi’s appeal, were mentioned before Vice President O'Connor on 4 October 2022. At this mention, Ms Gatongi confirmed that she wished for her appeal to be placed in abeyance pending the determination of related matters before the Commission.
- [12]A further mention was held before Vice President O'Connor on 18 April 2024. At this mention, the Appellant confirmed she wished to proceed with her appeal, after having been advised that consideration was being given by the Commission to not hearing her appeal pursuant to s 562A(3) of the Industrial Relations Act 2016 (Qld) (‘the IR Act’).
- [13]A Directions Order was subsequently issued on 18 April 2024, directing the parties to file written submissions addressing whether the Commission should decide not to hear the appeal, pursuant to s 562A(3) of the IR Act.
Preliminary issues
Legislative framework
- [14]
- [15]Section 324 of the PS Act provides the following:
- This section applies if –
(a) before the commencement, a person appealed against a decision under the repealed Act, section 194; and
(b) immediately before the commencement, the appeal had not been decided.
- From the commencement, the appeal must be heard and decided under chapter 3, part 10.
- [16]Immediately before the commencement of the PS Act, Ms Gatongi’s appeal against the disciplinary action decision, made under the repealed Act, had not been decided. Ms Gatongi’s appeal is now to be decided under ch 3 pt 10 of the PS Act.
- [17]Section 131 of the PS Act provides the following:
131 Decisions against which appeals may be made
(1) An appeal may be made against the following decisions –
…
(c) a disciplinary decision;
(d) a fair treatment decision …
(2) However, if an appeal may be made under this section against a decision, other than under subsection (1)(d), the appeal can not be made under subsection (1)(d).
- [18]Section 129 of the PS Act relevantly defines ‘disciplinary decision’:
129 Definitions for part
In this part –
…
disciplinary decision means a decision under a disciplinary law to discipline –
- a person (other than by termination of employment), including the action taken in disciplining the person …
- [19]While Ms Crowley’s decision to impose disciplinary action is clearly a disciplinary decision pursuant to s 131(1)(c) of the PS Act, Ms Gatongi’s appeal has purportedly been made as an appeal of a fair treatment decision.[6] It was not open to the Appellant to file an appeal against the disciplinary action decision pursuant to s 131(1)(d) of the PS Act when the disciplinary action decision was already appealable under s 131(1)(c).[7]
- [20]However, neither party has raised this jurisdictional issue in their submissions, appearing instead content to treat Ms Gatongi’s appeal as one made against a disciplinary decision. Noting the result of my consideration below, examining this jurisdictional point further is of little utility, and I have opted to proceed on the basis that Ms Gatongi correctly lodged her appeal against a disciplinary decision.
- [21]
Issue for determination
- [22]The present issue for my determination is the issue on which the parties have filed written submissions, namely, whether the Commission should decide not to hear the appeal pursuant to s 562A(3) of the IR Act, which provides the following:
562A Commission may decide not to hear particular public service appeals
…
(3)The commission may decide it will not hear a public service appeal against a decision if –
(a) the appellant has made an application to a court or tribunal relating to the decision, whether or not the application has been fully decided; or
(b)the commission reasonably believes, after asking the appellant to establish by oral or written submissions that the appellant has an arguable case for the appeal, that the appeal –
(i) is frivolous or vexatious; or
(ii) is misconceived or lacks substance; or
(iii) should not be heard for another compelling reason.
- [23]I note that, ordinarily, the Commission is to decide an appeal of this nature by reviewing the decision appealed against.[10] That review is limited to a consideration of whether the decision appealed against was fair and reasonable,[11] “having regard to the evidence available to the decision maker when the decision was made.”[12] A review of this type is therefore not a re-hearing of the matter on the merits, and findings that were reasonably open to the decision-maker on the relevant material before them should not be expected to be disturbed on appeal.
Appeal grounds
- [24]In the Appeal Notice filed on 25 August 2022, the Appellant outlines the following grounds of appeal:[13]
The action to relegate me to a lower pay grade is punitive, vindictive, excessive and in my opinion constitutes bullying and harassment by my employer for the following reasons:
- I have already been suspended without pay for a period of 6 months for the same action. Imposing additional punishment is excessive and serves no purpose other than to intimidate and bully me.
- The suspension without pay has caused me to fall behind in my career growth as I have lost substantial time which I would have used to further my career development.
- I have no record of discipline in my time with the department nor in any previous employment as a teacher and this should have been taken into account.
- My individual circumstances as described in my show cause response have not been taken into consideration and it appears to me the department had already made its decision and was just going through the motions of the discipline process.
Submissions
Appellant’s submissions
- [25]The Appellant filed written submissions in respect of s 562A of the IR Act on 10 May 2024, contending, in summary, that “the demand to comply with the vaccine mandate had no merit”.[14] She submits that her original employment contract made no mention of “enforced medical procedures and interventions”, and that “imposing demands that are inconsistent with the original agreement and consequently taking disciplinary action, is unlawful, immoral and reeks of mischief.”[15]
- [26]The Appellant proceeds to question the lawful and reasonableness of the direction to be vaccinated against COVID-19, contending that “the vaccinations were a medical procedure and no medical intervention is completely risk-free”, and that she was not afforded the opportunity to make an informed decision about whether to receive the vaccination. In this regard, she melodramatically adds that:[16]
Lawfulness cannot be used as a stick with which to brow- beat (sic) the population: looking back in history, the deaths, dispossession and incarceration of 6 million people in Germany and greater Europe was lawful at the time. So was apartheid. So was segregation in the southern states of the US. The fact that the CHO’s directions were lawful does not make them just, right or true. As a carcase tied up with weights and sunk to the bottom of a lake will inevitably float to the surface, so will the true of this matter show itself up in all its smelly glory.
- [27]Further, the Appellant submits that her “only supposed crime … is to take a stance regarding what is right for [her] body”, and by doing so she has been “lumped together with child molesters, workplace bullies and money pilferers.”[17] As she has otherwise had “untainted service” with the Department, she contends that the disciplinary action decision is “punitive” and “heavy-handed”.[18]
- [28]The Appellant lastly submits that “Covid is now as common as a nose job in Beverly Hills”, and that “the entire population was whipped into a state of white hysteria over a virus that causes only the slightest blip on the public health radar and is at par with the common flu.”[19] Given that “the CHO vaccine directions were unable to contain the virus”, the Appellant argues that she should not be required to “incur further financial loss as punishment” for her non-compliance.[20]
- [29]Strangely, the Appellant concludes by submitting that it is her “prayer to the commission that it decline to hear the appeal and that no further action is taken regarding this matter.”[21] Granting this request of the Appellant would have the result of upholding the disciplinary action decision, such that the penalty of a reduction in renumeration and a reprimand will be imposed.
Respondent’s submissions
- [30]On 31 May 2024, the Respondent filed submissions addressing why they believe the Commission should dismiss Ms Gatongi’s appeal pursuant to s 562A of the IR Act. After providing a summary of the disciplinary process, the Respondent, in summary, submitted that:
- the Direction has repeatedly been found by the Commission to be lawful and reasonable, and it is “inevitable that Ms Gatongi would be sanctioned for her failure to comply” with it;
- Ms Gatongi’s reasons for not complying with the Direction concerned the use of aborted foetal tissue in the COVID-19 vaccines, and her application for an exemption on these grounds was denied;
- decisions to refuse exemptions made on the same or similar basis as Ms Gatongi’s own exemption application, have consistently been held by the Commission to be fair and reasonable;
- Ms Gatongi was not exempt from the Direction, and she does not have a reasonable excuse for her failure to comply with it;
- the Commission has “repeatedly confirmed the seriousness of an employee’s failure to comply with a reasonable direction from their employer”;
- “it is a term of every employment contract that an employee will follow lawful and reasonable directions of their employers”;
- rather than being coerced into being vaccinated, Ms Gatongi “exercised her choice to not receive a COVID-19 vaccination, and … was subject to the inevitable consequences of that choice”;
- it is “not incumbent on the Department to accept Ms Gatongi’s position on the effectiveness of the vaccines when deciding to discipline her”;
- the Commission “has consistently found vaccine directives are not inconsistent with the Human Rights Act 2019”;
- the disciplinary action decision was procedurally fair;
- none of the matters raised in Ms Gatongi’s Appeal or submission have been found in favour of employees or former employees;
- the Commission should exercise its discretion under s 562A(3)(b) of the IR Act “on the basis that it would not be in the public interest because the matters raised in Ms Gatongi’s Appeal have previously been heard and determined by the Commission or are otherwise misconceived or lacking in substance”; and
- Ms Gatongi’s Appeal is “not sufficiently unique to warrant expending any further resources of the Commission.”
Consideration
- [31]I note from the outset that there are many similarities between this decision, and my recent decision in Sankey v State of Queensland (Department of Education) (‘Sankey’).[22] I emphasise that this is not due to a failure on my part to consider Ms Gatongi’s appeal on its own merits (or lack thereof), but rather because Ms Gatongi’s appeal is unexceptional, and no unique matters have been raised.
- [32]Ms Gatongi’s contention that the Direction was unlawful and unreasonable is not a new one for the Commission’s consideration. As I observed in Sankey, “the volume of decisions issued by this Commission finding that the Department’s Direction was lawful and reasonable is indeed so significant that further consideration of any argument to the contrary is rendered entirely unnecessary.”[23] That Ms Gatongi has apparently endeavoured to compare herself to, e.g., the victims of Nazi Germany’s genocidal regime,[24] instead of engaging in any review of this instructive body of decisions, demonstrates a blindness to the lack of merit this argument possesses.
- [33]As the lawfulness and reasonableness of the Direction cannot be disputed, it is inevitable that Ms Gatongi would be sanctioned for failing to comply with the Direction without a reasonable excuse. The Direction plainly does not provide any latitude for religious exemption,[25] so no submissions regarding her religious beliefs could have the effect of Ms Gatongi being granted such an exemption from being vaccinated. While Ms Gatongi regardless proceeded to apply for an exemption exclusively on the basis of her religious beliefs, it was not then incumbent on the decision-maker to consider at length the Appellant’s submissions in this regard, much less be ultimately persuaded by them.[26] That the decision-maker accordingly declined to do so, does not amount to a failure to afford Ms Gatongi procedural fairness.
- [34]Further, I agree with the Respondent’s submission that Ms Gatongi’s concerns “about the requirement to be vaccinated not being part of her employment contract [have] … been determined by the Commission”, and that “it is a term of every employment contract that an employee will follow lawful and reasonable directions of their employers.”[27]
- [35]In circumstances where Ms Gatongi clearly disobeyed a lawful and reasonable direction, and continues to assert that her doing so was justified, a reduction in renumeration and a reprimand is not heavy-handed, but rather is an entirely lenient consequence that has resulted in Ms Gatongi ultimately avoiding termination of employment. In this regard, I refer the Appellant to the recent decision of Industrial Commissioner Dwyer in Stacey v State of Queensland (Department of Education), which has been relevantly extracted below:[28]
[35] In general terms, a failure by an employee to comply with a lawful and reasonable direction is a form of misconduct with which courts and tribunals dealing with industrial matters are very familiar. It is a form of misconduct that almost always attracts a penalty of termination of employment, and properly so.
[36] At the very essence of every employment relationship is the fundamental notion of subordination. An employer must have the ability (within lawful and reasonable bounds) to direct employees in the manner they consider best or necessary for the overall functioning of the enterprise they own or manage. Moreover, an employer must be able to feel confident an employee will comply with those directions. It follows that insubordination is a most grievous injury to that relationship in that, it undermines the trust an employer must be able to have in an employee to perform their duties as directed.
[37] It is well established that a failure to follow a lawful and reasonable instruction is serious misconduct within the ordinary meaning of that phrase. While a comprehensive and robust system of recognising and protecting the rights of employees is essential to maintain healthy industrial relations, it should not obscure the fundamental feature of subordination in the relationship between employer and employee. Employees enjoy many rights, but their obligations to their employer are equally important to the employment relationship.
[38] An employee who fails to comply with a lawful and reasonable direction must expect that a consequence of that choice will, in all likelihood, be the termination of their employment. There is a lengthy history of authority making this proposition indisputable. These authorities establish that dismissal is justified when an employee wilfully or deliberately disregards an important condition of the contract of employment, or disobeys a lawful instruction, or engages in acts of insubordination which go to the heart of the employment relationship.
- [36]I would add that the Appellant’s argument that she has not previously been disciplined, does not make the penalty now imposed unwarranted. Further, the hardship suffered by the Appellant and her family throughout her suspension cannot reasonably be characterised as prolonged punishment imposed by the Department. The Appellant herself imposed such hardship on her family because of her choice to not be vaccinated. That is a choice that Ms Gatongi was entirely free to make, but not without consequences that are solely her own responsibility.[29]
- [37]Lastly, Ms Gatongi’s submissions in respect to COVID-19 now being “as common as a nose job in Beverly Hills” are of no relevance to a consideration of whether the disciplinary action decision, made in 2022, was fair and reasonable. Submissions to this effect will not be considered further.
Conclusion
- [38]Ms Gatongi, in accordance with her religious beliefs and her beliefs about the risks of COVID-19, decided to act in accordance with those beliefs and not with her employer’s direction to be vaccinated. While deciding to not comply with the Direction was no doubt difficult for Ms Gatongi based on her firmly held beliefs, it is the choice that she has made, for which she must face the consequences. Her reasons for making that choice, as expressed in her submissions and Appeal Notice, have been advanced by many other appellants before this Commission, all without success.
- [39]I consider the lack of any merit or substance in the arguments of Ms Gatongi to be a compelling reason to exercise my discretion to decline to hear Ms Gatongi’s appeal, pursuant to s 562A(3) of the IR Act.[30]
Order
- [40]I make the following order:
- Pursuant to s 562A(3) of the Industrial Relations Act 2016 (Qld), I decline to hear the appeal
Footnotes
[1] Employment Direction 1/22 – COVID-19 Vaccinations, 4.
[2] Letter of Mr D. Miller (Executive Director, Early Learning and Development) to Ms M. Gatongi, dated 10 June 2022, 4.
[3] Letter of Ms A. Crowley (Assistant Director-General, Human Resources) to Ms M. Gatongi, dated 1 August 2022, 2.
[4] Public Sector Act 2022 (Qld) s 289.
[5] Public Sector Act 2022 (Qld) s 289.
[6] Appeal Notice, filed 25 August 2022, 3.
[7] Public Sector Act 2022 (Qld) s 131(2).
[8] Ibid, s 133(c).
[9] Industrial Relations Act 2016 (Qld) s 564.
[10] Ibid, s 562B(2).
[11] Ibid, s 562B(3).
[12] Ibid, s 562B(4)(a).
[13] Appeal Notice, filed 25 August 2022, 4.
[14] Appellant’s submissions, filed 10 May 2024, 1.
[15] Ibid, [1].
[16] Ibid, [2].
[17] Ibid, [3].
[18] Ibid, [3].
[19] Ibid, [4].
[20] Ibid, [4].
[21] Ibid, [5].
[22] [2024] QIRC 197.
[23] [2024] QIRC 197 [29], citing Thorley v State of Queensland (Department of Education) [2022] QIRC 133; Tadeo v State of Queensland (Department of Education) [2022] QIRC 177; Currie (Murray) v State of Queensland (Department of Education) [2022] QIRC 269; Miller v State of Queensland (Department of Education) [2022] QIRC 316; Bakhash v State of Queensland (Department of Education) [2022] QIRC 362; Graf and Ors v State of Queensland (Department of Education) [2022] QIRC 451; Reh v State of Queensland (Department of Education) [2023] QIRC 149; Daley v State of Queensland (Department of Education) [2023] QIRC 277; Rossiter v State of Queensland (Department of Education) [2024] QIRC 25; Bowcock v State of Queensland (Department of Education) [2024] QIRC 28; and Parry v State of Queensland (Department of Education) [2024] QIRC 042.
[24] Appellant’s submissions, filed 10 May 2024, [2].
[25] Employment Direction 1/22 – COVID-19 Vaccinations, cl 8.
[26] See Sankey v State of Queensland (Department of Education) [2024] QIRC 197 [39]-[40].
[27] Respondent’s submissions, filed 31 May 2024, [20], citing Brasell-Dellow & Ors v State of Queensland (Queensland Police Service) & Ors [2021] QIRC 356 [65], and Gundrum v State of Queensland (Queensland Health) [2022] QIRC 226 [44].
[28] [2024] QIRC 220 [35]-[38].
[29] Ibid, [48]-[50].
[30] See Tilley v State of Queensland (Queensland Health) [2023] QIRC 262 [33].