Thorley v State of Queensland (Department of Education)
[2024] QIRC 26
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- Unreported Judgment
- Thorley v State of Queensland (Department of Education)[2024] QIRC 26
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Thorley v State of Queensland (Department of Education)[2024] QIRC 26
Thorley v State of Queensland (Department of Education)[2024] QIRC 26
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Thorley v State of Queensland (Department of Education) [2024] QIRC 26 |
PARTIES: | Thorley, Ross (Appellant) v State of Queensland (Department of Education) (Respondent) |
CASE NO: | PSA/2022/785 |
PROCEEDING: | Public Service Appeal - Appeal against a suspension without pay decision |
DELIVERED ON: | 9 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 renumeration decision – where the appellant was suspended without renumeration 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 562A, s 562B 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 Carr v State of Queensland (Department of Education) [2022] QIRC 188 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 Nicholas v State of Queensland (Department of Education) [2022] QIRC 157 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 Rossiter v State of Queensland (Department of Education) [2024] QIRC 025 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 |
Reasons for Decision
Background
- [1]Mr Ross Thorley ('the Appellant') is employed by the State of Queensland ('Department of Education') ('the Department') as a teacher at Merrimac State School.
- [2]The Appellant is appealing a decision to not reimburse his remuneration for a period that he was suspended without pay ('Reimbursement Decision') as follows:
A reduction in remuneration from ES4-02 to ES4-01 for a period of 18 weeks and a reprimand.
- [3]The Appellant did not comply with the Department of Education Employment Direction 1/22 - COVID-19 Vaccinations ('the Direction')[1] to receive or provide evidence of receiving two doses of a COVID-19 vaccination.
Exemption application
- [4]On 4 January 2022 the Appellant applied for a medical exemption. The Respondent requested evidence from the Appellant to support the application and completion of a COVID-19 medical authority exemption form. This was provided by the Appellant on 18 January 2022. On 19 January 2022 the Respondent advised the Appellant his exemption application was denied as it did not meet the approved Australian Technical Advisory Group on Immunisation guidelines.[2]
Disciplinary process
- [5]The Appellant was suspended from duty on normal remuneration until 24 February 2022. On 24 February 2022 the Appellant was suspended without pay.[3] He availed himself of long service leave between 1 March 2022 to 12 July 2022. The Respondent said that regardless of the Appellant's absence on leave, he remained non-compliant with the Directive and disciplinary action would be considered.
- [6]On 10 June 2022 the Respondent wrote a First Show Cause Notice to the Appellant seeking a response to the allegation he had contravened the Direction. The Appellant responded on 24 June 2022. A Second Show Cause Notice was issued to the Appellant on 1 August 2022 seeking a response within seven days. The Appellant responded to the proposed disciplinary action on 8 August 2022. The Respondent communicated the Reimbursement Decision to the Appellant on 22 August 2022.[4]
Mention
- [7]Two Mentions of this matter were held before the Commission as constituted on 4 October 2022 and 4 September 2023 at which time the Appellant attended. At the first Mention the Appellant sought the matter be adjourned to the Registry.[5]
- [8]At the second Mention on 4 September 2023, in seeking to continue his appeal, the Appellant stated:
HIS HONOUR: Very well. Mr Thorley, just wanted to know what you want to do with this matter.
APPLICANT THORLEY: Yeah, I'd like to proceed with this matter.
HIS HONOUR: Pardon me?
APPLICANT THORLEY: I'd like to proceed with this matter.
HIS HONOUR: And what's the basis on what - upon which you wish to proceed?
APPLICANT THORLEY: Well, from the correspondence sent a little while ago now, directions around the human rights and what constitutes a decisionmaker in the - in our letters that we received. Also, asking about - around the direction [indistinct] our suspension letters when we first received the suspension letters, we followed all proceedings. How could we be following everything that they required from us?
HIS HONOUR: Yes.
APPLICANT THORLEY: And then the last part, I want to know more and ask about consultation process. As you'd know, under the Human Rights Act, anything that changes the health of the workers must be in consultation and we received no consultation around this matter.
HIS HONOUR: Yes. Mr Thorley, are you aware that there's been a number of decisions in the Commission dealing with the issues you've raised and they've all been rejected? Are you aware of that?
APPLICANT THORLEY: All of them?
HIS HONOUR: All of them.
APPLICANT THORLEY: Every single point that was.
HIS HONOUR: Yes.
APPLICANT THORLEY: - - - addressed?
HIS HONOUR: Yes, there hasn't been - it's - it has been held by the Commission that there's - and other Tribunals, I should say, that the health mandate was a lawful one, it can be done and there was an obligation for employees to follow it. The matters regarding human rights, the matters regarding the decision-making process in a decision called Nuske v the State of Queensland (The Department of Health), it dealt with those issues. In the broader context, there's been issues dealt with in a case called Luna and Winter in the Commission, all of them dealing with people that have been suspended without pay. So these issues about whether or not there's adequate consultation, the Full Bench of this Commission has dealt with in cases such as Mackenzie, another case of Brasell-Dellow. So there's been a multitude of cases that have dealt with the issues that you've raised. There's no contention, is there, Mr Thorley, that you didn't have the vaccination as required?
APPLICANT THORLEY: Yes, definitely not, your Honour.
HIS HONOUR: Okay, so that's where the problem is. Soon as you fail to obey a lawful instruction, you mightn't wanted to do it but nevertheless, the law says it's a lawful instruction. There are things that follow from that and that's what's happened in this set of processes, but none of the matters you raised are new to me, I've heard them before and a number of people have read these cases in recent days and have discontinued. I would assume that's why they've discontinued.
APPLICANT THORLEY: Okay. That - yeah, I guess right now I can't disagree with what you're saying, your Honour. I suppose I just want it to be put on record that, you know, we do not obviously agree with anything that's happened here and I - yeah, I don't know if there's any further - - -
HIS HONOUR: Well - - -
APPLICANT THORLEY: [indistinct] for continuing on with this matter.
HIS HONOUR: The only thing you can do is if you proceed ahead, you'll need to conduct a case. Whether the Crown takes a position that it'll make an application to strike your matter out because there's all - there's a body of law. That's a matter I'll ask Mr Grant about shortly, all right?
MR GRANT: Thank you, your Honour. It will be the state's position that any of the matters being called over today, would they proceed, we would be making application that they not be heard further or dismissed.
HIS HONOUR: Okay.
MR GRANT: That's consistent with our conduct - the conduct in other matters that have proceeded on that basis.
HIS HONOUR: Very well, very well. So did you hear that, Mr Thorley? That's the approach that's going to be taken.
APPLICANT THORLEY: Yes, your Honour, I understand.
HIS HONOUR: So what do you want to do? Do you want to continue with the matter?
APPLICANT THORLEY: No, your Honour, I just - I guess I don't know if there's any course to say that, you know, we disagree with this and I don't know if there's
HIS HONOUR: Yes, look, I've done a lot of these matters - - -
APPLICANT THORLEY: - - - and [indistinct] that.
HIS HONOUR: Yes, that's a universal view. I understand your views and I respect the individuals, you know, making the decision, but there's things that follow from those decisions, as you appreciate, and I'm bound, now, by the law that's been set down by the Commission as well.
APPLICANT THORLEY: Yeah, I understand.[6]
…
APPLICANT THORLEY: So we're just trying to understand. So now, we didn't get paid for that time and now we're getting disciplined again. Yeah, it's just really difficult for like, I guess, you know, not knowing the law exactly, obviously - - -
HIS HONOUR: Yes.
APPLICANT THORLEY: - - - being school teachers, that it's just a little bit confusing that we followed the letter perfectly, you know? I could read it, I've got it right here in front of me.
HIS HONOUR: Right.
APPLICANT THORLEY: And it doesn't say anything about, you know, being disciplined after being suspended. Obviously, I've been suspended, but being disciplined after the fact. You know, you don't follow the requirements of being vaccinated. It says, you know, you can have an application for an [indistinct] you can go into a trial period or unvaccinated workers, you must not go onsite and - - -
HIS HONOUR: Yes.
APPLICANT THORLEY: - - - then it obviously talks about the dates.
HIS HONOUR: Yes.
APPLICANT THORLEY: You know, about the first jab, the second jab, all those [indistinct] things. It's - the letter doesn't state anything other than that and in our view, we followed it perfectly. We're not going on a, you know, emergency setting site.
HIS HONOUR: Yes, but - - -
APPLICANT THORLEY: Or high risk, sorry. High-risk site.
HIS HONOUR: Yes. So but as I say, these are all consequences of the process that was followed, following the mandate, all right?[7]
Whether the Commission may decide not to hear particular public service appeals under section 562A of the IR Act
- [9]On 9 October 2023 the Commission issued Directions for the Respondent to file submissions addressing why the Commission should decide not to hear the appeal pursuant to s 562A of the Industrial Relations Act 2016 ('the IR Act'). The Appellant was required to file submissions in response by 20 November 2023. The Appellant failed to do so.
- [10]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
- [11]In his appeal notice the Appellant claims the Direction was not a lawful and reasonable direction, that it was not reasonable based on the risk posed by COVID-19 and that the Direction contravened existing legislative protections including the Privacy Act 1988 (Cth) and the Human Rights Act 2019 (Qld). The Respondent submits these issues have been considered and determined in numerous matters before the Commission and in particular Mocnik & Others v State of Queensland (Queensland Health)[8] and Nuske v State of Queensland (Department of Education).[9] None of these issues have been found in favour of employees or former employees.[10]
- [12]The Respondent seeks that the Commission should exercise its discretion under s 562A(3)(b) of the IR Act 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.[11]
- [13]The Appellant has failed to make any unique argument in support of his Appeal despite 'overwhelming legal precedent and accepted mainstream medical and scientific opinions' for his non-compliance with a lawful direction.[12]
Whether decision is fair and reasonable
- [14]
- [15]
- [16]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 consistently found vaccination directives are not inconsistent with the Human Rights Act 2019.[17]
- [17]
Consideration
- [18]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.[20]
- [19]The Appellant bears the onus of establishing that the decision was not fair or reasonable. He has failed to do so.
- [20]In the cases determined in this Commission many of which have been referred to above, I consider the decision to not reimburse the Appellant for the period of his suspension was fair and reasonable. As I observed in Rossiter v State of Queensland (Department of Education):[21]
[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.[22] The decision, the subject of this appeal was, in my view, fair and reasonable.
- [21]The assertions made by the Appellant in his notice of appeal include that the Direction was not lawful or reasonable; that the Direction was not reasonable having regard to the risk posed by COVID-19; a challenge to the efficacy and effectiveness of the vaccines; and the Direction otherwise contravened existing legislative protections. These submissions are not new. They have been the subject of various proceedings before this Commission and all such arguments have been rejected. The submissions of the Appellant have no merit.
- [22]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.
- [23]Appropriate grounds have been formed to exercise the discretion to decline to hear the appeal.
- [24]I make the following order:
Order:
- 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]-[8].
[3] This decision was made after a show cause notice was issued to Mr Thorley, to which he responded.
[4] Respondent's submissions filed 30 October 2023, [9]-[13].
[5] TR1-10, L35-TR1-11, Ll7.
[6] TR1-3, L13-TR1-5, L31.
[7] TR1-7, LL1-35.
[8] [2023] QIRC 058, (Mocnik).
[9] [2023] QIRC 199, (Nuske).
[10] Respondent's submissions filed 30 October 2023, [15], [16].
[11] Ibid, [18].
[12] Tilley v State of Queensland (Queensland Health) [2023] QIRC 262, [33].
[13] 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.
[14] Respondent's submissions filed 30 October 2023, [20].
[15] Bakhash v State of Queensland (Department of Education) [2022] QIRC 362, [27].
[16] Huntington v State of Queensland (Queensland Health) [2022] QIRC 290, [46].
[17] [2023] QIRC 058; Bakhash v State of Queensland (Department of Education) [2022] QIRC 362; Elliott v State of Queensland (Queensland Health) [2022] QIRC 332.
[18] [2023] QIRC 199.
[19] Respondent's submissions filed 30 October 2023, [24].
[20] 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.
[21] [2024] QIRC 025.
[22] Grant v BHP Coal Pty Ltd (No 2) [2015] FCA 1374.