Rossiter v State of Queensland (Department of Education)
[2024] QIRC 25
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- Unreported Judgment
- Rossiter v State of Queensland (Department of Education)[2024] QIRC 25
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Rossiter v State of Queensland (Department of Education)[2024] QIRC 25
Rossiter v State of Queensland (Department of Education)[2024] QIRC 25
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Rossiter v State of Queensland (Department of Education) [2024] QIRC 25 |
PARTIES | Rossiter, Sarah (Appellant) v State of Queensland (Department of Education) (Respondent) |
CASE NO: | PSA/2022/828 |
PROCEEDING: | Public Service Appeal - Appeal against a suspension without pay decision |
DELIVERED ON: | 8 February 2024 |
HEARING DATE: | On the papers |
MEMBER: | O'Connor, VP |
HEARD AT: | Brisbane |
ORDER: | 1. Pursuant to s 562A (3) of the Industrial Relations Act 2016, I decline to hear the appeal. |
CATCHWORDS: | PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – PUBLIC SERVICE APPEAL – appeal against a suspension without remuneration decision – where the appellant was suspended for a period of time without remuneration for not complying with Direction 1/22 – COVID-19 Vaccinations – where appellant submits that decision is unfair and unreasonable – where Commission may decide not to hear particular public service appeal |
LEGISLATION: | Industrial Relations Act 2016 (Qld), s 562 Human Rights Act 2019 (Qld) Information Privacy Act 2009 (Qld) Privacy Act 1988 (Cth) Department of Education Employment Direction 1/22 - COVID-19 Vaccinations |
CASES: | Allison v State of Queensland (Department of Education) [2022] QIRC 152 Bakhash v State of Queensland (Department of Education) [2022] QIRC 362 Brailey v State of Queensland (Department of Education) [2022] QIRC 401 Carr v State of Queensland (Department of Education) [2022] QIRC 188 Carr v State of Queensland (Department of Education) [2023] ICQ 012 Currie (Murray) v State of Queensland (Department of Education) [2022] QIRC 269 Elliott v State of Queensland (Queensland Health) [2022] QIRC 332 Gorry v State of Queensland (Department of Education) [2022] QIRC 196 Grant v BHP Coal Pty Ltd (No 2) [2015] FCA 1374 Huntington v State of Queensland (Queensland Health) [2022] QIRC 290 Luna v State of Queensland (Department of Education) [2022] QIRC 419 Nicholas v State of Queensland (Department of Education) [2022] QIRC 157 Nuske v State of Queensland (Department of Education) [2023] QIRC 199 Page v John Thompson and Lesley Dwyer, As Chief Executive Officer, West Moreton Hospital and Health Service [2014] QSC 252 Prentis v State of Queensland (Department of Education) [2022] QIRC 212 Schimke v State of Queensland (Department of Education) [2022] QIRC 136 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 Tribe v State of Queensland (Department of Education) [2022] QIRC 203 Winter v State of Queensland (Department of Education) [2022] QIRC 350 |
Reasons for Decision
Background
- [1]Ms Sarah Rossiter ('the Appellant') is employed by the State of Queensland ('Department of Education') ('the Department') as a teacher aide at Warwick West State School.
- [2]The Appellant does not appeal the decision to make a disciplinary finding against her. Rather, her appeal is limited to the decision to not reimburse her remuneration for a period that she was suspended without pay ('Reimbursement Decision') as follows:
A reduction in remuneration from TA3-01 to TA2-04 for a period of 18 weeks and a reprimand.
- [3]The Appellant was suspended without pay for a period of time because she did not provide evidence of having received two doses of a COVID-19 vaccination.
- [4]This appeal has been commenced in the context of the Appellant allegedly failing to comply with the Department of Education Employment Direction 1/22 - COVID-19 Vaccinations ('the Direction).[1]
- [5]It is not in dispute that the Appellant failed to comply with the Direction of her employer to receive two doses of an approved COVID-19 vaccination.
- [6]On 17 January 2022, the Appellant advised the Respondent she had decided not to go ahead with her second dose of a COVID-19 vaccination or booster vaccinations for 'personal health reasons'. The Appellant disagreed with the vaccination mandate stating vaccinations were still in the 'experimental phases' and requested to be placed on unpaid leave 'as long as possible'.[2]
- [7]The Appellant requested a risk assessment for the Warwick West State School on 25 and 26 January 2022 and sought meaningful consultation about risk assessment in two template letters to the same effect on 27 and 31 January 2022.[3]
Discipline process
- [8]On 10 June 2022, the Respondent issued the First Show Cause Notice to the Appellant providing 14 days for her to respond to the Allegation that she had contravened, without reasonable excuse, the Direction to receive the prescribed doses of a COVID-19 vaccination. The Appellant did not respond. In the Second Show Cause Notice dated 1 August 2022 the Respondent advised the Appellant the Allegation was substantiated and afforded the Appellant seven days to respond. The Appellant responded to the proposed disciplinary action on 8 August 2022.[4]
- [9]The Respondent communicated the Reimbursement Decision to the Appellant on 22 August 2022.
- [10]The Appellant filed her appeal of the Reimbursement Decision in the Queensland Industrial Relations Commission ('the Commission) on 12 September 2022.
Mention
- [11]At a Mention of the matter on 4 September 2023 before the Commission as constituted, the Appellant stated:
HIS HONOUR: Now, I've just got to find out, Ms Rossiter, what you'd like to do.
APPLICANT ROSSITER: Well, I got the first vaccination but it - I think people don't realise what it is doing to people. I had family and friends affected by vaccine and have died from it. I had the first one and it had affected my mental health and my physical health. I now have allergies that I have never had before and I don't think you realise how this affects people. Yes, we were suspended Why should we have disciplinary action, losing our pay, when we've already been suspended?
HIS HONOUR: You've had the vaccinations, have you?
APPLICANT ROSSITER: I had the first one and I refused the rest because of my health condition.
HIS HONOUR: And you made an application for an exemption for health?
APPLICANT ROSSITER: No.
HIS HONOUR: Right. So we're dealing with the appeal - - -
APPLICANT ROSSITER: I was suspended.
HIS HONOUR: - - - document that's before me.
APPLICANT ROSSITER: I was told I had to quit and I refused to quit so I was suspended.
HIS HONOUR: Well, Ms Rossiter, what do you want to do? Do you want to proceed with the matter or not proceed with the matter?
APPLICANT ROSSITER: I'd like to proceed with the matter because I don't agree that we should have further disciplinary action when we're already suspended. I have a family, I have four kids and I was out of job for six months.
HIS HONOUR: Okay, so we'll list the matter as proceeding, all right?
APPLICANT ROSSITER: Thank you.[5]
- [12]Directions were subsequently issued on 9 October 2023 for the Respondent to file submissions addressing why the Commission should decide not to hear the appeal pursuant to s 562A (3) of the Industrial Relations Act 2016 ('the IR Act') by 30 October 2023. The Appellant was required to file submissions in response by 20 November 2023.
- [13]The Appellant failed to file any submissions in accordance with the directions order.
Statutory provisions
- [14]Section 562A relevantly provides:
562A Commission may decide not to hear particular public service appeals
- …
- …
- The commission may decide it will not hear a public service appeal against a decision if -
- 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
- 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 -
- is frivolous or vexatious; or
- is misconceived or lacks substance; or
- should not be heard for another compelling reason.
Respondent's submissions
- [15]In her appeal the Appellant contends that the Direction was not a lawful and reasonable direction and that it was not reasonable based on the risks posed by COVID-19; and the Direction contravened legislative protections including the Privacy Act 1988 (Cth) and the Human Rights Act 2019 (Qld).
- [16]The Respondent referred to recent Decisions of the Commission which found the Direction was both lawful and reasonable.[6] The revocation of the Direction does not alter that finding.
- [17]The Appellant has failed to make any unique argument in support of her Appeal despite 'overwhelming legal precedent and accepted mainstream medical and scientific opinions' for her non-compliance with a lawful direction.[7]
Commission may decide not to hear particular public service appeals under s 562A of the IR Act
- [18]In their submissions the Respondent seeks that the Commission should exercise its discretion under s 562A(3)(b) of the IR Act to not hear the Appeal as it would not be in the public interest because the matters have been heard and determined or are otherwise misconceived or lacking in substance.[8]
- [19]As the Appellant was not available to work during the period of her suspension, she had not complied with the then necessary requirements to work. She was suspended without pay due to her failure to comply with the Direction. Indeed, those matters are the very reason why she had been suspended in the first place.
- [20]The Commission has found that the Respondent appropriately applied the Suspension Directive by not reimbursing employees for remuneration lost during the period of a suspension without remuneration where the person was unable to attend the workplace to perform work.[9]
Whether decision is fair and reasonable
- [21]The Respondent submits the decision to impose disciplinary action was fair and reasonable.
- [22]
- [23]The Appellant was only required to provide evidence of vaccination status, and this was not inconsistent with the Privacy Act 1988 (Cth) or the Information Privacy Act 2009 (Qld). In addition, the Appellant's human rights were considered as the Respondent had a public interest in ensuring employees complied with lawful and reasonable directions. As determined in Mocnik and others the Commission has repeatedly found vaccination directives are not inconsistent with the Human Rights Act 2019.[12]
- [24]The Reimbursement Decision issued to the Appellant was procedurally fair. Similar to the decision in Nuske v State of Queensland (Department of Education),[13] the Appellant was provided with the Allegation including particulars and provided with an opportunity to respond and make submissions in respect of the proposed penalty.[14]
- [25]
Conclusion
- [26]Section 562B of the IR Act provides the appeal must be decided by the Commission reviewing the decision appealed against and the purpose of the appeal is to decide whether the decision appealed against was fair and reasonable.[17]
- [27]The Appellant bears the onus of establishing that the decision was not fair or reasonable. She has failed to do so.
- [28]At the Mention, the Appellant indicated she received the first vaccination and then 'refused the rest because of my health condition', however she did not apply for an exemption.[18]
- [29]The Employment Directions applied to the Appellant because she was a Teacher Aide employed in a school operated by the Respondent. The Employment Directions defined that workplace and similar workplaces to be a high-risk setting.[19]
- [30]The 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.
- [31]In the letter of 22 August 2022 the Respondent gave the following reasons for imposing the disciplinary action:
In reaching my decision on the disciplinary action to be taken, I have had regard to the following:
- The disciplinary finding against you is serious. It is reasonable for the department, as your employer, to expect that you comply with lawful and reasonable directions. Such an expectation is fundamental to the employment relationship, and your failure to comply is damaging to the trust and confidence placed in you.
- As a public servant, you are in a position of privilege and trust, and there is a reasonable public and employer expectation that you comply with directions arising in response to a serious public health matter. Employment Direction 1/22- COVID-19 Vaccinations (Direction) was issued as part of the department's response to the public health order, declaring a public health emergency.
- The department reasonably expected that you were aware of your obligations to comply with the Direction, as it had been extensively communicated to employees from the time the Direction was announced.
- While I note your submissions, I am satisfied that you have not provided an explanation, or information regarding extenuating or mitigating circumstances that leads me to believe that the disciplinary action is unreasonable in the circumstances.
- Your conduct in failing to comply with the Direction posed a risk to the health and safety of your co‑workers, students and members of the public, which was mitigated only by the steps taken by the department to suspend you from duty.
- The disciplinary action reflects the seriousness of the matter, but as you remain an employee of the department, affords you the opportunity to continue to perform your duties, and display modified behaviour, by complying with directions in future.
- I acknowledge that the disciplinary action will have a financial impact on you. However, I consider that the seriousness of the disciplinary action and its impact on you is proportionate to the seriousness of your conduct.
- I acknowledge that the implementation of the Direction, and its resultant impact may have been a difficult period for you. I acknowledge the personal impact these processes can have on employees; however, I remain of the view that disciplinary action is appropriate, in circumstances where I have found that you have breached the Direction.
- I note that you were suspended without pay for a period of time while the Direction was in place. For clarity, suspension and suspension without remuneration are not disciplinary action pursuant to section 188 of the Act. While I have noted that you were suspended without remuneration and accept that this would likely have had a financial impact on you, I remain of the view that the disciplinary action is reasonable and proportionate to your conduct in this matter.
- I do not consider that there is any other disciplinary action which adequately reflects the seriousness with which I view your conduct in this matter.[20]
- [32]The Disciplinary action taken against the Appellant was a reduction in remuneration from TA3-01 to TA2-04 for a period of 18 weeks and a reprimand.
- [33]Having regard to the lawful and reasonable nature of the Direction it ought not have been a surprise to the Appellant that she was the subject of disciplinary action. It is well accepted that a failure to obey a lawful and reasonable direction of your employer is a serious matter.[21] The decision, the subject of this appeal was, in my view, fair and reasonable.
- [34]The Appellant made a series of assertions in her notice of appeal and elsewhere that the Employment Directions were unlawful; that the vaccines the subject of the Direction were in the 'experimental phases'; the vaccines were not necessary to deal with the COVID-19 pandemic; challenging the efficacy and effectiveness of the vaccines; and the Directions otherwise contravened existing legislative protections. Similar submissions have been made in various proceedings before this Commission and all such arguments have been rejected. The Appellants submissions have no merit.
- [35]On any view of the material before the Commission the appeal advanced by the Appellant is misconceived or lacking in substance and it would not be in the public interest for this matter to progress to a hearing.
- [36]Appropriate grounds have been formed to exercise the discretion to decline to hear the appeal.
- [37]I make the following order:
Order:
1. Pursuant to s 562A (3) of the Industrial Relations Act 2106, I decline to hear the appeal.
Footnotes
[1] On 16 December 2021, the Director-General issued Employment Direction 1/21- COVID-19 Vaccinations. On 10 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] Respondent's submissions filed 30 October 2023, [5].
[3] Ibid, [6].
[4] Respondent's submissions filed 30 October 2023, [7]-[9].
[5] TR1-17, LL11-47.
[6] Thorley 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.
[7] Tilley v State of Queensland (Queensland Health) [2023] QIRC 262, [33].
[8] Respondent's submissions filed 30 October 2023, [14].
[9] Winter v State of Queensland (Department of Education) [2022] QIRC 350; Brailey v State of Queensland (Department of Education) [2022] QIRC 401; Luna v State of Queensland (Department of Education) [2022] QIRC 419.
[10] Bakhash v State of Queensland (Department of Education) [2022] QIRC 362, [27].
[11] Huntington v State of Queensland (Queensland Health) [2022] QIRC 290, [46].
[12] [2023] QIRC 058; Bakhash v State of Queensland (Department of Education) [2022] QIRC 362; Elliott v State of Queensland (Queensland Health) [2022] QIRC 332.
[13] [2023] QIRC 199.
[14] Respondent's submissions filed l30 October 2023, [25].
[15] [2023] QIRC 058, (Mocnik).
[16] Respondent's submissions filed 30 October 2023, [13].
[17] Page v John Thompson and Lesley Dwyer, As Chief Executive Officer, West Moreton Hospital and Health Service [2014] QSC 252, [60] to [61] (Byrne SJA) as to the former, equivalent provisions in s 201 of the Public Service Act 2008.
[18] TR1-17, LL20-27.
[19] See: Carr v State of Queensland (Department of Education) [2023] ICQ 012.
[20] Letter from Anne Crowley, Assistant Director-General, Human Resources, Department of Education to Appellant dated 22 August 2022.
[21] Grant v BHP Coal Pty Ltd (No 2) [2015] FCA 1374.