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Rowe v State of Queensland (Department of Education)[2024] QIRC 248

Rowe v State of Queensland (Department of Education)[2024] QIRC 248

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Rowe v State of Queensland (Department of Education) [2024] QIRC 248

PARTIES:

Rowe, Kerry

(Appellant)

v

State of Queensland (Department of Education)

(Respondent)

CASE NO:

PSA/2022/861

PROCEEDING:

Public Sector Appeal – Disciplinary Decision

DELIVERED ON:

15 October 2024

MEMBER:

McLennan IC

HEARD AT:

On the papers

ORDERS:

Pursuant to s 562A(3) of the Industrial Relations Act 2016, the appeal will not be heard.

CATCHWORDS:

PUBLIC SECTOR – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – PUBLIC SECTOR APPEAL – appeal against disciplinary action decision – where the appellant did not comply with Employment Direction 1/21 – COVID-19 Vaccinations – consideration under section 562A(3) of the Industrial Relations Act 2016 (Qld) whether to decline to hear appeal – where the appeal is dismissed

LEGISLATION AND INSTRUMENTS:

Employment Direction 1/21 – COVID-19 Vaccinations

Industrial Relations Act 2016 (Qld) s 562A

Public Sector Act 2022 (Qld) s 324

Public Service Act 2008 (Qld) (repealed) s 188

CASES:

Allison v State of Queensland (Department of Education) [2022] QIRC 152

Bailey v State of Queensland (Department of Education) [2024] QIRC 218

Bakhash v State of Queensland (Department of Education) [2022] QIRC 362

Carr v State of Queensland (Department of Education) [2022] QIRC 188

Carr v State of Queensland (Department of Education) [2024] QIRC 210

Currie (Murray) v State of Queensland (Department of Education) [2022] QIRC 269

Donaldson v State of Queensland (Department of Education) [2024] QIRC 239

Elliot v State of Queensland (Department of Education) [2022] QIRC 362

Friis v State of Queensland (Queensland Ambulance Service) [2022] QIRC 360

Gatongi v State of Queensland (Department of Education) [2024] QIRC 233

Gorry v State of Queensland (Department of Education) [2022] QIRC 196

Gundrum v State of Queensland (Queensland Health) [2022] QIRC 226

Huntington v State of Queensland (Queensland Health) [2022] QIRC 290

Johnston & Ors v Carroll (Commissioner of the Queensland Police Service) & Anor; Witthahn & Ors v Wakefield (Chief Executive of Hospital and Health Services and Director General of Queensland Health); Sutton & Ors v Carroll (Commissioner of the Queensland Police Service) [2024] QSC 2

Mocnik & Ors v State of Queensland (Queensland Health) [2023] QIRC 058

Nicholas v State of Queensland (Department of Education) [2022] QIRC 157

Nuske v State of Queensland (Department of Education) [2023] QIRC 199

Prentis v State of Queensland (Department of Education) [2022] QIRC 212

Radanovic v State of Queensland (Department of Education [2024] QIRC 225

Sankey v State of Queensland (Department of Education) [2024] QIRC 197

Schimke v State of Queensland (Department of Education) [2022] QIRC 136

Stacey v State of Queensland (Department of Education) [2024] QIRC 220

Steenson v State of Queensland (Department of Education) [2024] QIRC 242

Sturgess v State of Queensland (Department of Education) [2024] QIRC 236

Tadeo v State of Queensland (Department of Education) [2022] QIRC 177

Temple v State of Queensland (Department of Education) [2022] QIRC 133

Thorley v State of Queensland (Department of Education) [2024] QIRC 026

Tilley v State of Queensland (Queensland Health) [2023] QIRC 262

Tribe v State of Queensland (Department of Education) [2022] QIRC 203

Reasons for Decision

  1. [1]
    On 12 September 2022, Ms Kerry Rowe (the Appellant) filed an appeal of the disciplinary decision of Ms Anne Crowley, Assistant Director-General, Human Resources, Department of Education (the Department; the Respondent) to impose the disciplinary action of a reduction in remuneration from AO3-04 to AO3-03, for a period of 18 weeks (at which time Ms Rowe would automatically revert to her previous increment) and a reprimand (the Decision). 
  2. [2]
    The disciplinary action was imposed in relation to Ms Rowe's failure to receive two doses of a COVID-19 vaccine.

Background

  1. [3]
    Ms Rowe was employed as an Administrative Officer based at Earnshaw State College.
  2. [4]
    While employed as an Administrative Officer with the Department, Ms Rowe did not comply with the Department of Education Employment Direction 1/21 – COVID-19 Vaccinations (the Direction)[1] to receive or provide evidence of receiving two doses of a COVID-19 vaccination.
  3. [5]
    Specifically, under cl 5 of the Direction Ms Rowe was required to:
  • Have received the prescribed number of doses of a COVID-19 vaccine by 11:59pm AEST on 23 January 2022;[2] and
  • As soon as reasonably practicable and in any event before attending a high-risk setting on 24 January 2022, show evidence of having received the prescribed number of COVID-19 vaccines in line with cl 6 of the Direction.[3]
  1. [6]
    Ms Rowe was initially suspended from duty on normal remuneration until 20 April 2022. By letter dated 21 January 2022, Ms Genevieve Gillies-Day, Executive Director, Safety and Integrity, Human Resources, wrote to Ms Rowe informing her of the decision to suspend her without pay.
  2. [7]
    Ms Rowe applied for long service leave from 24 January 2022 to 30 June 2022 and applied for leave on 24 January 2022, after she was suspended from duty without pay.
  3. [8]
    On 10 June 2022, Mr David Miller, Executive Director, Early Learning and Development wrote to Ms Rowe inviting her to respond, within 14 days, to the Allegation that she had contravened, without reasonable excuse, the Direction to receive the prescribed doses of a COVID-19 vaccine and/or show evidence of receiving same.
  4. [9]
    On 1 August 2022, Ms Crowley advised Ms Rowe she had found the Allegation was substantiated. Ms Rowe was afforded seven days to respond to the proposed reduction in remuneration, from AO3-04 to AO3-03, for a period of 20 weeks, at which time she would automatically revert to her previous increment, and a reprimand.
  5. [10]
    On 22 August 2022, Ms Crowley advised Ms Rowe of her decision to apply the proposed disciplinary action with a reduction in the penalty to 18 weeks (instead of 20 weeks) and a reprimand, pursuant to section 188(1) of the Public Service Act 2008 (Qld). This is the Decision appealed.
  6. [11]
    On 12 September 2022, Ms Rowe submitted her appeal of the Decision. In her Appeal notice, Ms Rowe submitted her response to the Show Cause Notice dated 1 August 2022 was not considered, as to why the proposed disciplinary action should not be taken, which included there was:
  1. a.
    No discussion about my prior impeccable employment record for 13 years bearing any impact in assessing the seriousness of the alleged conduct
  1. b.
    No discussion from the employer to indicate that working from home was an option
  1. c.
    No discussion about my financial hardship where I had to exhaust all my long service leave entitlements whilst awaiting the department’s decision
  1. d.
    No discussions were considered of my health and well being[4]
  1. [12]
    In her Appeal notice, Ms Rowe asserted that she was not afforded natural justice and procedural fairness. This was because she believes the correspondence from Ms Crowley was sent as a part of a "mail merge",[5] and did not provide reasons for the Decision which included consideration of "any information provided" by Ms Rowe.[6]
  2. [13]
    On 18 April 2024, Vice President O'Connor mentioned several public sector appeals, including Ms Rowe's. Ms Rowe advised that she wished to continue with her appeal and so, the Commission issued a Directions Order requiring submissions regarding whether the appeal should dismissed pursuant to s 562A(3)(b) because the appeal is either frivolous or vexatious, misconceived or lacking in substance or should not be heard for another compelling reason.

Jurisdiction

  1. [14]
    Ms Rowe filed her appeal under the Public Service Act 2008 (Qld) which was repealed by the Public Sector Act 2022 (Qld) (the PS Act) on 1 March 2023.
  2. [15]
    Section 324 of the PS Act provides:
  1. 324
    Existing appeal
  1. (1)
    This section applies if —
  1. (a)
    before the commencement, a person appealed against a decision under the repealed Act, section 194; and
  1. (b)
    immediately before the commencement, the appeal had not been decided.
  1. (2)
    From the commencement, the appeal must be heard and decided under chapter 3, part 10.
  1. [16]
    Immediately before the commencement of the PS Act, Ms Rowe's appeal against the disciplinary action decision had not been decided. The appeal is now to be decided under ch 3 pt 10 of the PS Act.
  2. [17]
    A public sector appeal is conducted by way of reviewing the decision appealed against. That review is limited to a consideration of whether the decision appealed against was fair and reasonable, having "regard to the evidence available to the decision-maker when the decision was made."[7]
  3. [18]
    It does not involve a re-hearing of the matter 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.

Relevant Principles

  1. [19]
    Section 562A of the Industrial Relations Act 2016 (IR Act) provides (emphasis added):
  1. 562A
    Commission may decide not to hear particular public service appeals
  1. (3)
    The commission may decide it will not her a public service appeal against a decision if –
  1. (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
  1. (i)
    is frivolous or vexatious; or
  1. (ii)
    is misconceived or lacks substance; or
  1. (iii)
    should not be heard for another compelling reason.

Submissions

The Appellant

  1. [20]
    The Appellant's submissions can be summarised as follows:
  • The Department did not provide her with a risk assessment, which is required under ss 47 and 49 of the Work Health and Safety Act 2011 (Qld).
  • Ms Rowe's concerns for the safety and necessity of the vaccine remain valid and the Respondent dismissed those concerns.
  • The penalty is excessively severe and unjustified considering the risks that have been associated with mandated injections.
  • Ms Rowe's unpaid suspension, which occurred as a result of not receiving the vaccine, impacted her financial stability. 
  • The decision in Johnston & Ors v Carroll[8] found COVID vaccination directions were unlawful, and consequently, the Direction the Appellant was subject to must be unlawful under the Human Rights Act 2019 (HR Act), and further, the Respondent did not consider Ms Rowe's human rights.
  • The disciplinary action was excessive and unjustified, considering that new information regarding the risks associated with mandated injections.
  • She "had a reasonable excuse" which included the right to refuse medical treatment until the Department could give evidence and provide reasonable information necessary to provide consent to medical treatment.

The Respondent

  1. [21]
    In summary, the Respondent submitted:
  • Ms Rowe does not have a reasonable excuse for her failure to comply with the Direction.
  • The Direction has repeatedly been found to be lawful and reasonable.[9]
  • The matters raised by the Appellant have been extensively determined before the Commission in decisions including Mocnik & Ors v State of Queensland[10] and Nuske v State of Queensland (Department of Education).[11]
  • The Commission has confirmed there is no entitlement to a risk assessment, noting the vaccines are approved by the TGA and ATAGI.[12]
  • The Commission has also repeatedly confirmed the seriousness of an employee's failure to comply with a reasonable direction from their employer.[13]
  • The decision in Johnston & Ors v Carroll[14] concerns only vaccine mandates within the Queensland Police Service and Queensland Ambulance Service and has little impact on the present appeal.
  • The appeal does not warrant expending further resources of the Commission, as the matters raised have been previously heard and determined.
  1. [22]
    The Respondent submits that the Commission should exercise its discretion under s 562A(3)(b) of the IR Act on the basis that it is not in the public interest to hear Ms Rowe's appeal as the matters she has raised have previously been heard and determined by the Commission or are otherwise misconceived or lacking in substance. The Respondent cites Tilley v State of Queensland (Queensland Health)[15] a recent decision of the Commission on this matter, which relevantly states:
  1. [33]
    The Commission's resources must be reserved for matters of genuine controversy. They ought not to be made available to unreasonable individuals who, despite overwhelming legal precedent and accepted mainstream medical and scientific opinions, insist on arguing (and re-arguing) the same tedious points in a vain attempt to have their baseless views affirmed, or to delay the inevitable sanctions awaiting them for their non-compliance with a lawful direction.

Consideration

  1. [23]
    It is not in dispute that Ms Rowe failed to comply with the Direction to be vaccinated. Further, is not necessary to consider whether Ms Rowe had a reasonable excuse to contravene the Direction, nor is it necessary to consider whether her previous suspension without pay decision was fair and reasonable.
  2. [24]
    The decision subject of the appeal is the disciplinary penalty decision of a reduction in classification for 18 weeks (reduced from 20 weeks) and a reprimand.
  3. [25]
    I note that Ms Rowe has not raised any unique or novel arguments which would lead to the inference that she has an arguable case as to why the disciplinary action decision was unfair or unreasonable. The matters contained within the Ms Rowe's submissions have been the subject of numerous appeals before this Commission and have relevantly been dismissed.
  4. [26]
    It is by now well-established that the Direction was lawful and reasonable.[16] It is also well-established that failure to comply with a lawful and reasonable direction is a serious act of insubordination.[17] As the Direction's lawfulness and reasonableness cannot be disputed, it is inevitable that Ms Rowe would be sanctioned for failing to comply with it.
  5. [27]
    With respect to the arguments raised by Ms Rowe regarding not receiving a "risk assessment", it has already been determined by this Commission that "an obligation for a duty holder [like the Department] to undertake a risk assessment … does not, of itself, create a right by an employee to demand a documented copy of that risk assessment."[18]As further noted by Industrial Commissioner Dwyer in Gundrum v State of Queensland (Queensland Health),[19] "Covid vaccine safety has been evaluated and confirmed as safe by the Australian Technical Advisory Group on Immunisation … and as such there is no reasonable basis for [the Appellant] to demand a risk assessment or complain [they] did not receive one."[20]
  6. [28]
    Additionally, the natural justice matters subject of Ms Rowe's appeal have been considered in the Vice President's decision of Nuske v State of Queensland (Department of Education)[21] including the 'mail merge' nature of the communication of the disciplinary action decision to many recipients. Vice-President O'Connor determined that:
  1. (a)
    the individual issues/circumstances raised by the Appellant were appropriately considered and given weight by the decision-maker in making the decision pursuant to Clause 8.6 of the Discipline Directive; and
  1. (b)
    the decision-maker complied with the requirements of s 190 of the PS Act 2008 and specifically with the Discipline Directive and the principles of natural justice.
  1. [29]
    There is no material before me that would cause me to depart from the Vice President's ruling in Nuske v State of Queensland (Department of Education).[22] 
  2. [30]
    I also note recent occasions where the Commission has considered appeals similar to Ms Rowe's and determined to exercise the discretion afforded by s 562A(3) not to hear the appeal.[23]
  3. [31]
    I refer to the observations of Industrial Commissioner Dwyer in Tilley v State of Queensland (Queensland Health),[24] that the Commission's resources "must be reserved for matters of genuine controversy".[25] Those resources must not be used re-agitating arguments that have been already exhaustively dealt with, and on each occasion deemed unmeritorious, by the Commission. Ms Rowe has not highlighted any matters of that have not already be heard and determined by this Commission and it would be a waste of the Commission's resources to hear this appeal.
  4. [32]
    For the reasons above at [23]-[31], I am not satisfied there is a compelling reason to hear the appeal.
  5. [33]
    I order accordingly.

Orders

Pursuant to s 562A(3) of the Industrial Relations Act 2016, the appeal will not be heard.

Footnotes

[1]Effective from 15 December 2021. In March 2022 the Director General issued Employment Direction 1/22 - COVID 19 Vaccinations. The requirement to receive two doses of a COVID-19 vaccine did not change. The Direction was revoked effective on 30 June 2022.

[2]Department of Education Employment Direction 1/21 – COVID-19 Vaccinations cl 5(c).

[3]Ibid cl 5(d).

[4]Appeal notice filed 12 September 2022, Schedule 1, [6].

[5]Ibid [12].

[6]Ibid [21].

[7]Industrial Relations Act 2016 (Qld) s 562B.

[8]Johnston & Ors v Carroll (Commissioner of the Queensland Police Service) & Anor; Witthahn & Ors v Wakefield (Chief Executive of Hospital and Health Services and Director General of Queensland Health); Sutton & Ors v Carroll (Commissioner of the Queensland Police Service) [2024] QSC 2.

[9]Temple v State of Queensland (Department of Education) [2022] QIRC 133; Schimke v State of Queensland (Department of Education) [2022] QIRC 136; Allison v State of Queensland (Department of Education) [2022] QIRC 152; Nicholas v State of Queensland (Department of Education) [2022] QIRC 157; Tadeo v State of Queensland (Department of Education) [2022] QIRC 177; Carr v State of Queensland (Department of Education) [2022] QIRC 188; Gorry v State of Queensland (Department of Education) [2022] QIRC 196; Tribe v State of Queensland (Department of Education) [2022] QIRC 203; Prentis v State of Queensland (Department of Education) [2022] QIRC 212; Currie (Murray) v State of Queensland (Department of Education) [2022] QIRC 269.

[10][2023] QIRC 58.

[11][2023] QIRC 199.

[12]Friis v State of Queensland (Queensland Ambulance Service) [2022] QIRC 360 at [36].

[13]Huntington v State of Queensland (Queensland Health) [2022] QIRC 290 at [54]; Bakhash v State of Queensland (Department of Education) [2022] QIRC 362 at [27].

[14]Johnston & Ors v Carroll (Commissioner of the Queensland Police Service) & Anor; Witthahn & Ors v Wakefield (Chief Executive of Hospital and Health Services and Director General of Queensland Health); Sutton & Ors v Carroll (Commissioner of the Queensland Police Service) [2024] QSC 2.

[15][2023] QIRC 262.

[16]Temple v State of Queensland (Department of Education) [2022] QIRC 133; Schimke v State of Queensland (Department of Education) [2022] QIRC 136; Allison v State of Queensland (Department of Education) [2022] QIRC 152; Nicholas v State of Queensland (Department of Education) [2022] QIRC 157; Tadeo v State of Queensland (Department of Education) [2022] QIRC 177; Carr v State of Queensland (Department of Education) [2022] QIRC 188; Gorry v State of Queensland (Department of Education) [2022] QIRC 196; Tribe v State of Queensland (Department of Education) [2022] QIRC 203; Prentis v State of Queensland (Department of Education) [2022] QIRC 212; Currie (Murray) v State of Queensland (Department of Education) [2022] QIRC 269.

[17]Elliot v State of Queensland (Department of Education) [2022] QIRC 362, [27]; see also Thorley v State of Queensland (Department of Education) [2024] QIRC 026, [15].

[18]Gundrum v State of Queensland (Queensland Health) [2022] QIRC 226, [38].

[19][2022] QIRC 226.

[20]Ibid.

[21][2023] QIRC 199.

[22]Ibid.

[23]Sankey v State of Queensland (Department of Education) [2024] QIRC 197; Carr v State of Queensland (Department of Education) [2024] QIRC 210; Bailey v State of Queensland (Department of Education) [2024] QIRC 218; Stacey v State of Queensland (Department of Education) [2024] QIRC 220; Radanovic v State of Queensland (Department of Education [2024] QIRC 225; Gatongi v State of Queensland (Department of Education) [2024] QIRC 233; Sturgess v State of Queensland (Department of Education) [2024] QIRC 236; Donaldson v State of Queensland (Department of Education) [2024] QIRC 239; Steenson v State of Queensland (Department of Education) [2024] QIRC 242.

[24][2023] QIRC 262.

[25]Ibid [33].

Close

Editorial Notes

  • Published Case Name:

    Rowe v State of Queensland (Department of Education)

  • Shortened Case Name:

    Rowe v State of Queensland (Department of Education)

  • MNC:

    [2024] QIRC 248

  • Court:

    QIRC

  • Judge(s):

    McLennan IC

  • Date:

    15 Oct 2024

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
Allison v State of Queensland (Department of Education) [2022] QIRC 152
3 citations
Bailey v State of Queensland (Department of Education) [2024] QIRC 218
2 citations
Bakhash v State of Queensland (Department of Education) [2022] QIRC 362
4 citations
Carr v State of Queensland (Department of Education) [2022] QIRC 188
3 citations
Carr v State of Queensland (Department of Education) [2024] QIRC 210
2 citations
Currie (Murray) v State of Queensland (Department of Education) [2022] QIRC 269
2 citations
Donaldson v State of Queensland (Department of Education) [2024] QIRC 239
2 citations
Friis v State of Queensland (Queensland Ambulance Service) [2022] QIRC 360
2 citations
Gatongi v State of Queensland (Department of Education) [2024] QIRC 233
2 citations
Gorry v State of Queensland (Department of Education) [2022] QIRC 196
3 citations
Gundrum v State of Queensland (Queensland Health) [2022] QIRC 226
3 citations
Huntington v State of Queensland (Queensland Health) [2022] QIRC 290
2 citations
Johnston v Commissioner of Police [2024] QSC 2
3 citations
Mocnik v State of Queensland (Queensland Health) [2023] QIRC 58
2 citations
Nicholas v State of Queensland (Department of Education) [2022] QIRC 157
3 citations
Nuske v State of Queensland (Department of Education) [2023] QIRC 199
3 citations
Prentis v State of Queensland (Department of Education) [2022] QIRC 212
2 citations
Radanovic v State of Queensland (Department of Education) [2024] QIRC 225
2 citations
Sankey v State of Queensland (Department of Education) [2024] QIRC 197
2 citations
Schimke v State of Queensland (Department of Education) [2022] QIRC 136
3 citations
Stacey v State of Queensland (Department of Education) [2024] QIRC 220
2 citations
Steenson v State of Queensland (Department of Education) [2024] QIRC 242
2 citations
Sturgess v State of Queensland (Department of Education) [2024] QIRC 236
2 citations
Tadeo v State of Queensland (Department of Education) [2022] QIRC 177
3 citations
Thorley v State of Queensland (Department of Education) [2022] QIRC 133
3 citations
Thorley v State of Queensland (Department of Education) [2024] QIRC 26
2 citations
Tilley v State of Queensland (Queensland Health) [2023] QIRC 262
3 citations
Tribe v State of Queensland (Department of Education) [2022] QIRC 203
2 citations

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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