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Parry v State of Queensland (Department of Education)[2024] QIRC 42

Parry v State of Queensland (Department of Education)[2024] QIRC 42

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION

Parry v State of Queensland (Department of Education) [2024] QIRC 42

PARTIES:

Parry, Jeremy

(Appellant)

v

State of Queensland (Department of Education)

(Respondent)

CASE NO:

PSA/2022/862

PROCEEDING:

Public Sector Appeal – Appeal against a disciplinary decision

DELIVERED ON:

15 February 2024

DATES OF WRITTEN SUBMISSIONS:

Respondent’s submissions filed 5 December 2023

Appellant’s submissions filed 19 December 2023

HEARD AT:

On the papers

MEMBER:

Pidgeon IC

ORDERS:

The decision appealed against is confirmed.

CATCHWORDS:

PUBLIC SECTOR – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – PUBLIC SECTOR APPEAL – appeal against a disciplinary decision – where the appellant is employed by the respondent as a teacher – where the appellant failed to comply with Department of Education Employment Direction 1/21 – COVID-19 Vaccinations – where following a show cause process, the respondent determined to implement disciplinary action of a reduction in remuneration and a reprimand for a period of 18 weeks – whether the disciplinary decision was fair and reasonable – appeal dismissed

LEGISLATION AND

OTHER INSTRUMENTS:

Department of Education Employment Direction 1/21 – COVID-19 Vaccinations cls 5, 6, 8

Industrial Relations Act 2016 (Qld) ss 562A, 562B, 562C

Public Sector Act 2022 (Qld) ss 129, 131, 133, 289, 324

Public Service Act 2008 (Qld) s 187 (repealed)

CASES:

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

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

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

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

Mocnik & Others 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

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

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

Reasons for Decision

Introduction

  1. [1]
    Mr Jeremy Parry (‘the Appellant’) is employed by the State of Queensland (Department of Education) (‘the Respondent’) as a teacher at Elanora State High School.
  1. [2]
    Mr Parry appeals the decision of Ms Anne Crowley, Assistant Director-General, Human Resources, Department of Education dated 22 August 2022 to impose the disciplinary action of a reduction in remuneration from Experienced Teacher to Senior Teacher for a period of 18 weeks (after which his pay would automatically revert to its previous increment) and a reprimand.
  1. [3]
    The disciplinary action was taken in relation to the following, substantiated allegation in relation to Mr Parry’s non-compliance with the Department of Education Employment Direction 1/21 – COVID-19 Vaccinations (‘Direction 1/21’):

You have contravened, without reasonable excuse, Clause 5 of the Direction, by failing to receive the prescribed doses of a COVID-19 vaccine and/or show evidence of having received the prescribed doses of a COVID-19 vaccine in line with Clause 6 of the Direction.

The disciplinary process

  1. [4]
    Mr Parry had previously been suspended from duty with normal remuneration from 21 January 2022 to 30 June 2022 for choosing not to receive the required COVID-19 vaccinations in accordance with Direction 1/21, which applied to him.
  1. [5]
    Mr Parry took long service leave from 24 January 2022 to 20 May 2022, and sick leave from 21 May 2022 to 2 July 2022. Direction 1/21 continued to apply to Mr Parry during this time and he was advised by the Department that even if he was utilising his leave entitlements, the Department would consider commencing a disciplinary process against him for failure to comply with the Department’s lawful and reasonable direction.

First show cause notice

  1. [6]
    On 21 June 2022, Mr David Miller, Executive Director, Department of Education issued Mr Parry with his first show cause notice. Mr Miller wrote to Mr Parry inviting him to respond within 14 days to the allegation that in having failed to receive a first dose of a COVID-19 vaccination and provide the Department with proof of having done so, Mr Parry had not complied with Direction 1/21.
  1. [7]
    Mr Parry replied to the first show cause notice on 2 July 2022 where he did not dispute that Direction 1/21 applied to him, that he had not been vaccinated against COVID-19, and that he did not have an exemption from complying with the direction.
  2. [8]
    Instead, Mr Parry said that he had a ‘private medical condition’ which meant he was ‘extremely hesitant’ to take any medication other than Panadol, noting a previous adverse reaction he claims to have experienced after taking Ibuprofen. Mr Parry did not provide evidence of a medical contraindication to COVID-19 vaccination.

Second show cause notice

  1. [9]
    Ms Crowley, the decision-maker in the disciplinary action decision subject of this appeal, made disciplinary findings against Mr Parry on 1 August 2022 pursuant to section 187(1)(d) of the now repealed Public Service Act 2008 (Qld). Having found the allegation to be substantiated, Ms Crowley provided Mr Parry with seven days to show cause why disciplinary action should not be imposed, specifically a reprimand and a reduction in remuneration from Experienced Senior Teacher to Senior Teacher for a period of 20 weeks (after which he would automatically revert to his previous increment).
  1. [10]
    Mr Parry responded to the second show cause notice on 7 August 2022 where he explained that for much of the duration that the Department says Mr Parry was in breach of Direction 1/21, he was not working as he was suspended from duty.  Mr Parry said he felt he had ‘already been financially penalised’ and claimed that reducing his remuneration would be ‘unjustified’. Mr Parry proposed that the Department impose a reprimand only against him.
  1. [11]
    On 22 August 2022, Ms Crowley informed Mr Parry of the disciplinary action imposed (which is described at paragraph [2] above).
  1. [12]
    While allocated to me for hearing in November 2023, Mr Parry filed his appeal of this decision on 12 September 2022.

Appeal principles

  1. [13]
    Section 562B(3) of the Industrial Relations Act 2016 (Qld) (‘the IR Act’) provides that a public sector appeal is to be decided by reviewing the decision appealed against and ‘the purpose of the appeal is to decide whether the decision appealed against was fair and reasonable’.
  1. [14]
    Findings made in the decision which are reasonably open on the relevant material or evidence before the decision-maker should not be expected to be disturbed on appeal.
  1. [15]
    A public sector appeal is not an opportunity for a fresh hearing, but a review of the decision arrived at by the decision-maker.
  1. [16]
    In deciding this appeal, s 562C(1) of the IR Act provides that the Commission may:
  1. confirm the decision appealed against; or

…

  1. For another appeal— set the decision aside, and substitute another decision or return the matter to the decision maker with a copy of the decision on appeal and any directions considered appropriate.

Legislative framework

  1. [17]
    The Appellant filed his appeal before the commencement of the new Public Sector Act 2022 (Qld) (‘the PS Act’) on 1 March 2023. Section 289 of the PS Act repeals the previous Public Service Act 2008 (Qld) which was in effect at the time of the disciplinary decision and when Mr Parry filed his appeal.
  1. [18]
    Section 324 of the PS Act relevantly provides:
  1. 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.

  1. From the commencement, the appeal must be heard and decided under chapter 3, part 10.
  1. [19]
    Immediately before the commencement of the new PS Act, Mr Parry’s appeal had not been decided. I will therefore decide the appeal under ch 3, pt 10 of the new PS Act.
  1. [20]
    Section 131 of the PS Act lists various categories of decisions against which an appeal may be made. Section 131(1)(c) provides that an appeal may be made against a disciplinary decision.
  1. [21]
    Section 129 of the PS Act relevantly states:

129  Definitions for part

…

disciplinary decision means a decision under a disciplinary law to discipline—

  1. a person (other than by termination of employment), including the action taken in disciplining the person; or
  2. a former public sector employee by way of a disciplinary declaration made under section 95, including if the disciplinary action that would have been taken was termination of employment.
  1. [22]
    Section 133 of the PS Act explains who may appeal a disciplinary decision:

 133  Who may appeal

 …

  1. for a disciplinary decision—a public sector employee or former public sector employee aggrieved by the decision if the employee is entitled to appeal under a directive
  1. [23]
    I am satisfied that the decision is one that may be appealed against and that the appeal was lodged within the required time.

Mr Parry’s reasons for appeal

  1. [24]
    In his appeal notice filed on 12 September 2022, Mr Parry provides a background of the disciplinary process and reiterates the reasons he provided in his show cause response, namely:
  • Mr Parry has worked for the Department of Education for the past 18 years with what he says to be an impeccable employment record. He has devoted himself to the education system with a professional and personal investment.
  • He feels that in light of his service, a discussion was warranted in assessing the seriousness and impact of the alleged conduct, but this did not occur.
  • While the Department’s disciplinary process acknowledges the personal impact to employees, Mr Parry does not believe that proper consideration was given to his communicated medical concerns about receiving the vaccine.
  • He does not believe that he disrespected the Chief Health Officer’s guidelines or Directive 1/21 and he says this was not his intention.
  • He believes the disciplinary process is the result of a lack of communication from the Department regarding ‘pertinent information’.
  • Mr Parry says he has been prescribed and taken medication for a long-term medical condition for his entire professional career. He says this has not affected his performance or abilities as an educator.
  • Before his teaching career, Mr Parry says he experienced an interaction between the above medication and a secondary medication. He says that the secondary medication was new to the market, there was no significant data on its usage, ‘professionals’ had limited information about the medication to consider, and so the medication was presented as having ‘no known interactions’.
  • In light of this, Mr Parry says he is concerned about being vaccinated against COVID-19 as he says the vaccine was ‘in trial stage at implementation’. He believes there was insufficient data about the vaccines and their potential interactions with other medications.
  • He says his life, and the lives of others around him, are too important for him to ‘throw away’ by receiving a ‘trial’ vaccine. He says this is his fundamental issue with Direction 1/21 which he articulated to the Department.
  • The disciplinary action has caused him and his family personal and financial stress. His marriage and relationship with his children have become ‘strained and almost untenable’, he has developed significant anxiety about his career and his financial ability to support his family, and he is unable to keep up with the cost of living.
  1. [25]
    Mr Parry’s issues with the decision subject of this appeal are:
  • The decision-maker failed to consider his individual circumstances despite stating that even if a particular matter was not specifically addressed, it does not mean the decision-maker failed to carefully consider it.
  • It is ‘peculiar’ that other Department of Education staff received similar correspondence at around the same time for their failure to comply with Direction 1/21.
  • He believes he was sent a ‘mail merge’ or ‘automated response’ as: the outcome was contained in the body of the email rather than attached as a letter; the email included an ‘unsubscribe button’ evidencing mass marketing email software being used; the ‘unsubscribe’ link takes him to a different domain to that of the Department of Education and he believes that separate domain is a ‘mail merge’ email campaign provider; his unvaccinated colleagues received the same disciplinary action of an 18-week reduction in pay and a reprimand; and he believes over 100 staff received this outcome.
  • He believes he did not receive natural justice or procedural fairness in the disciplinary process which he says is required by common law and statute.
  • By not receiving a tailored response to his unique circumstances, Mr Parry says he has not received a fair hearing. The generic nature of the response demonstrates that any response he provided was likely to bear little weight. He says this is akin to not providing him the opportunity to respond at all.
  • Mr Parry says he has been treated differently to other employees who took leave to avoid Direction 1/21, and employees with exemptions from being vaccinated.
  • Mr Parry says the decision was not fair and reasonable as improper consideration was undertaken and he was not provided adequate reasons.
  1. [26]
    Mr Parry seeks that the decision be set aside and replaced or alternatively, returned to the decision-maker for a fresh show cause process. If the decision is returned to the decision-maker, Mr Parry wants his matter to be reconsidered by a new decision-maker and for principles of natural justice to be applied.

The Respondent’s submissions

  1. [27]
    The Respondent submits that the decision was fair and reasonable.
  1. [28]
    Firstly, the Respondent says that the Queensland Industrial Relations Commission (‘the Commission’) has previously found Direction 1/21 to be both lawful and reasonable.[1] The Respondent notes that Mr Parry does not dispute this.
  1. [29]
    Simply put, the Respondent submits that Mr Parry was required to receive the prescribed number of doses of a COVID-19 vaccine by 23 January 2022 and provide evidence of this by 24 January 2022.
  1. [30]
    The Respondent contends that Mr Parry’s refusal to become vaccinated against COVID-19 is no different to any other circumstances where an employee fails to comply with a lawful and reasonable direction made by their employer.
  1. [31]
    By failing to comply with Direction 1/21, the Respondent says that Mr Parry has performed a serious act of insubordination and it was inevitable that he would be sanctioned for this. In the absence of any compelling mitigating factors, such insubordination could justify termination of employment, however the Respondent points out that Ms Crowley elected to impose a lighter sanction.
  1. [32]
    Turning to the arguments put forward by Mr Parry to justify his non-compliance with the direction, the Respondent says that many of these submissions have been extensively considered and determined by the Commission.[2] The Respondent argues that Mr Parry’s appeal is comparable to other public sector appeals involving an employee’s unjustified failure to comply with vaccination mandates in the workplace, none of which have been found in favour of employees or former employees.
  1. [33]
    While Mr Parry claims to have a ‘long-term’ and ‘private medical condition’ and says he is careful about taking medications, the Respondent says Mr Parry did not provide the decision-maker with evidence of a recognised medical contraindication or medical condition which prevents him from safely receiving current vaccines. Further, Mr Parry did not seek an exemption from Direction 1/21 on the basis of a medical contraindication from receiving COVID-19 vaccination, although he had the opportunity to do so.
  2. [34]
    In addition, the Respondent refutes Mr Parry’s allegation that Ms Crowley did not consider his submissions in full during the disciplinary process or consider his circumstances independently. This allegation forms the basis of Mr Parry’s belief that Ms Crowley’s decision was generic in nature as other unvaccinated Departmental employees received the same disciplinary action.
  1. [35]
    On this point, the Respondent cites Nuske v State of Queensland (Department of Education) (‘Nuske’),[3] where the Respondent says the Commission accepted Ms Crowley’s reasons and found that Ms Crowley had appropriately considered the individual issues before her when making her decision. Similarly, in this current public sector appeal brought by Mr Parry, the Respondent says Ms Crowley independently made her decision to impose disciplinary action against Mr Parry and demonstrated a clear and justifiable basis for making the decision. The Respondent says that Ms Crowley applied the same reasoning as she did in Nuske in Mr Parry’s disciplinary process, and the Commission should therefore find that the decision-making process Ms Crowley adopted complied with legislative requirements and principles of natural justice.
  1. [36]
    The Respondent seeks orders that the Commission dismiss Mr Parry’s appeal under s 562A of the IR Act on the basis that there is nothing about it which warrants the further expenditure of Commission resources, or alternatively, the Commission confirm the decision appealed against on the basis that it was fair and reasonable.

Mr Parry’s submissions

  1. [37]
    Mr Parry filed his submissions on 19 December 2023.
  1. [38]
    Essentially, Mr Parry argues that he did not intentionally disobey Direction 1/21 but that he could not receive a COVID-19 vaccination in good conscience as he was concerned about side effects and legal ramifications. He strongly believes that he was exercising his human rights, there should not have been a vaccination mandate, and that he is being punished for making a personal, medical decision. He says that his choice has come at great cost to him and his family.
  1. [39]
    Firstly, Mr Parry submits that his decision not to comply with Direction 1/21 ‘was in the best interests of humanity and those I serve’. He says that he was unwilling to ‘be in the position of potentially harming another individual by means of a vaccination that was still in trial stage and only allowed to be used on humans under emergency circumstance’. As Mr Parry believed that COVID-19 vaccines had not been through the human trial stage, he says the risk of vaccination to himself, his family, and the public was ‘not in anyone’s best interests as the outcome of an adverse reaction may be of dire consequence’.
  1. [40]
    Mr Parry further contends that he is aware of adverse effects of ‘the “human trial” that essentially took place from 2020 to current by vaccination of majority of society’ and maintains that he made the right choice to remain unvaccinated.
  1. [41]
    In addition, Mr Parry says that vaccination against COVID-19 should never have been mandated by the Department. He says, ‘At no stage should my career, my livelihood, the ability to support and provide for my family, to pay my bills and keep a roof over my head be jeopardised based upon a coercive directive to put something into my body in what was against my will’. Mr Parry reiterates that he has free will and makes his own medical choices about his body, which he says he should not be ‘penalised’ for.
  1. [42]
    Mr Parry submits that in order to receive a COVID-19 vaccine, he was required to complete a consent form. Mr Parry says he could not complete a consent form in good conscience as he believed the vaccine to be in a trial stage and that vaccination may cause him adverse physical side effects.
  1. [43]
    Moreover, Mr Parry says that he did not intentionally disrespect the Direction. However, Mr Parry says he was concerned about the following legal ramifications:

… being a legal document where I did not consent to receiving this vaccine, I felt it would have been fraudulent to sign it and get the vaccination. This would mean that if I had any side effects the onus would be on me as I consented. Knowing this is a legal document and could have legal ramifications going many years into the future as it is a trial vaccination, I felt that the legal consequence of having this injected into my body that may have caused potential harm to myself, my family or others…

  1. [44]
    Mr Parry also says that a vaccination mandate in his workplace is a violation of his human rights and bodily autonomy. He maintains that governments and their departments should not ‘mandate a medical procedure’, and he feels that he has been punished for exercising his human rights.
  1. [45]
    Finally, Mr Parry explains that he viewed the disciplinary action taken by the Department in response to his non-compliance with Direction 1/21 to be ‘the lesser of two main consequences’. He says:

The consequences as I saw them were that I may lose my job and income etc but I would still have my family.  The other consequence that I considered at this time is that if I had a cardiac event for example, whilst driving, and killed an innocent person then I could go to jail for something like involuntary manslaughter simply based upon the fact that I had consented to the vaccine. Therefore, I was consenting and accepting the outcome of any unknown side effects and their consequences.

  1. [46]
    Ultimately, Mr Parry asks that the Commission consider the nuances of his case and understand that he was unable to comply with the direction.
  1. [47]
    The Respondent did not file a reply to Mr Parry’s submissions.

Consideration

Mr Parry’s submissions regarding his personal circumstances and reasons for not following Direction 1/21

  1. [48]
    Clause 8.6 of Discipline Directive 14/20, which was in place at the time relevant to this disciplinary process and the disciplinary decision subject of this appeal, requires the decision-maker to review all relevant material and inform the employee of the discipline decision in writing, including reasons for the decision. Clause 8.5(d) sets out a range of matters to be taken into consideration when proposing discipline action. While cl 8.5 is relevant to determining proposed disciplinary action, it is clear from the decision on disciplinary action dated 22 August 2022 that Ms Crowley has used the matters set out in cl 8.5(d) as a basis for the provision of reasons for her decision. Clause 8.5(d) relevantly provides:
  1. In proposing appropriate and proportionate disciplinary action, the chief executive should consider:
  1. the seriousness of the disciplinary finding
  1. the employee’s classification level and/or expected level of awareness about their performance or conduct obligations
  1. whether extenuating or mitigating circumstances applied to the employee’s actions
  1. the employee’s overall work record including previous management interventions and/or disciplinary proceedings
  1. the employee’s explanation (if any)
  1. the degree of risk to the health and safety of employees, customers and members of the public
  1. the impact on the employee’s ability to perform the duties of their position
  1. the employee’s potential for modified behaviour in the work unit or elsewhere
  1. the impact a financial penalty may have on the employee
  1. the cumulative impact that a reduction in classification and/or pay-point may have on the employee

(xi)  the likely impact the disciplinary action will have on public and customer confidence in the unit/agency and its proportionality to the gravity of the disciplinary finding.

  1. [49]
    With regard to cl 8.5(d)(i) above, the Respondent says that by failing to comply with Direction 1/21, Mr Parry has performed ‘a serious act of insubordination’ and that a sanction was inevitable. The Respondent points out that insubordination could justify termination of employment, however the decision-maker elected to impose a lighter sanction. The letter Mr Parry received demonstrates that the seriousness of the conduct was considered by Ms Crowley as follows:

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.

  1. [50]
    With regard to cl 8.5(d)(ii), Mr Parry’s submissions make it clear that he was aware of the performance and conduct obligations he owed to the Respondent. At [39] above, Mr Parry discusses his ‘decision not to comply with Direction 1/21’ and at [45], Mr Parry indicates that he was aware that non-compliance with the Direction would lead to consequences including that he may lose his job. Mr Parry submits that he decided disciplinary action taken by the Department following his non-compliance with Direction 1/21 was ‘the lesser of two main consequences’. I am satisfied that Mr Parry was aware of the relevant performance and conduct obligations and that it was fair and reasonable for Ms Crowley to state:

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.

  1. [51]
    Clause 8.5(d)(iii) refers to whether extenuating or mitigating circumstances applied to Mr Parry’s actions and clause 8.5(d)(v) refers to the employee’s explanation, if any. Ms Crowley states:

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.

  1. [52]
    I have considered the matters Mr Parry has listed in his submissions in support of this appeal. Mr Parry makes reference to his medical concerns about receiving the vaccine, the lack of ‘pertinent information’ communicated by the Department, and a previous ‘interaction’ between medication he was taking and a ‘secondary’ medication. The Respondent submits that despite his reference to a long-term medical condition, Mr Parry did not provide Ms Crowley with any evidence of a recognised medical contraindication or medical condition preventing him from being vaccinated. There were a range of junctures at which Mr Parry could have done so prior to disciplinary findings being made and disciplinary action being imposed. Mr Parry does not dispute the Respondent’s submission that he did not seek an exemption from Direction 1/21. Mr Parry also discusses his concerns that the vaccination was in a trial stage and that his life and the lives of others around him are too important to throw away by receiving a trial vaccine. These matters have been repeatedly considered by the Commission and it has been determined that such arguments do not reasonably excuse an employee from complying with the direction to be vaccinated.[4]
  1. [53]
    I understand from his submissions that Mr Parry disagrees with Direction 1/21 but says that he did not intend to disrespect the Direction by not complying with it. Mr Parry has clearly made a choice which has had consequences. Mr Parry submits that he made the right choice to remain unvaccinated. With regard to these submissions, I can only note that Direction 1/21 has been consistently found by this Commission to be both lawful and reasonable.[5] Mr Parry may hold a different personal view, however Ms Crowley was not required to consider Mr Parry’s personal views about the lawfulness or reasonableness of Direction 1/21 when determining what disciplinary action to impose.
  1. [54]
    Clause 8.5(1)(d)(iv) states that the decision-maker should consider the employee’s overall work record including previous management interventions and/or disciplinary proceedings. I note Mr Parry’s submissions regarding his impeccable 18-year record with the Education Department. However, while identifying the seriousness of the disciplinary matter, Ms Crowley ultimately decides to impose a disciplinary action enabling Mr Parry to continue his career with the Department.
  1. [55]
    Clause 8.5(d)(vi) involves consideration of the degree of risk to the health and safety of employees, customers and members of the public. In her decision, Ms Crowley states:

Your conduct in failing to comply with the Direction posed a risk to the heath and safety of your co-workers, students and members of the public which was mitigated only be the steps taken by the department to suspend you from duty.

  1. [56]
    Given the vaccine direction was made ‘in recognition of the high risk of transmission of the COVID-19 virus, for the protection of vulnerable persons…’ it was reasonable for Ms Crowley to consider that a refusal to comply with the Direction posed a risk of health and safety to co-workers, students and members of the public.
  1. [57]
    Clause 8.5(d)(vii) involves consideration of the impact on the employee’s ability to perform the duties of their position. Ms Crowley addresses this matter and says that although Mr Parry is being disciplined, he remains an employee of the Department and is able to continue to perform his duties. I am satisfied that his matter was considered appropriately by the decision-maker.
  1. [58]
    Clause 8.5(d)(viii) refers to consideration of the employee’s potential for modified behaviour in the work unit or elsewhere. I am satisfied that Ms Crowley has addressed this matter by noting that remaining as an employee will allow Mr Parry to ‘display modified behaviour, by complying with directions in future’.
  1. [59]
    Clause 8.5(d)(ix) refers to consideration of the impact a financial penalty may have on the employee.  I have noted Mr Parry’s submission that the disciplinary action has caused Mr Parry and his family financial stress,  that he has developed ‘significant anxiety’ about his financial ability to support his family, and that he is unable to keep up with the cost of living. Ms Crowley addresses the impact of the financial penalty in the letter and states:

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.

  1. [60]
    I am satisfied that Ms Crowley gave consideration to cl 8.5(d)(ix).
  1. [61]
    Clause 8.5(d)(x) involves consideration of the cumulative impact that a reduction in classification and/or pay-point may have on the employee. Ms Crowley identifies that the implementation of the Direction and its impact may have been a difficult period for Mr Parry and that while the disciplinary process can have a personal impact on employees, she remained of the view that disciplinary action was appropriate. Ms Crowley also notes that despite the financial impact on Mr Parry, she remains of the view that the disciplinary action is reasonable and proportionate to Mr Parry’s conduct in the matter.  I am satisfied that Ms Crowley gave consideration to cl 8.5(d)(x).
  1. [62]
    Ms Crowley goes on to address Mr Parry’s human rights and acknowledges that the disciplinary action may affect his human rights, however Ms Crowley concludes that any limitation on Mr Parry’s human rights is reasonable and demonstrably justified because it is in the public interest to ensure employees of the Department comply with reasonable and lawful directions and this outweighs the potential impact on Mr Parry’s human rights.
  1. [63]
    Ms Crowley informed Mr Parry of his appeal rights, provided information about the requirement to disclose disciplinary action when seeking employment with the Department and provided information about the Employee Assistance Service. I am satisfied that in accordance with cl 8.6 of Discipline Directive 14/20, the written decision properly informed Mr Parry as to the reasons for the disciplinary decision, consideration was given to information Mr Parry provided, and Mr Parry was informed of his appeal rights.
  1. [64]
    I am further satisfied that having taken into account the seriousness of the disciplinary finding, it was open to Ms Crowley to impose the disciplinary penalty of a temporary reduction in remuneration and a reprimand.

Natural justice and procedural fairness

  1. [65]
    Key to Mr Parry’s reasons for appeal is that he believes the ‘generic’ nature of the communication of the disciplinary action to be imposed means that he did not receive natural justice or procedural fairness in the disciplinary process. Mr Parry says that the failure to provide a ‘tailored response’ to address his ‘unique circumstances’ means that the decision was not fair and reasonable as ‘improper consideration was undertaken’ and he was not provided adequate reasons.
  1. [66]
    As I have addressed at paragraphs [48]-[64] above, I am satisfied that Ms Crowley has properly considered the relevant matters as required by Directive 14/20. In addressing Mr Parry’s concerns that that the generic or ‘mail merge’ communication meant that is individual issues or circumstances were not appropriately considered as required by the Directive and that he was not afforded natural justice, I am respectfully guided by Vice-President O'Connor’s consideration of these matters in Nuske where this matter was addressed in detail. The reasons provided to Mr Nuske by Ms Crowley in the disciplinary decision letter were the same as those provided to Mr Parry and were issued on the same date.
  1. [67]
    I do not intend to set out all of Vice-President O'Connor’s reasoning here, however I note the following with regard to the question of whether the ‘mail merge’ or ‘generic communication’ demonstrated that the individual issues/circumstances raised by the Appellant were not appropriately considered or given weight in making the decision:

[48] The disciplinary action decision sets out the reasoning process adopted by the decision‑maker to reach her conclusion. The decision reflects to the extent relevant, the provisions of Directive 14/20 and Clause 8.6.

[49] The evidence before the Commission does not support the contention that the process utilised in the 22 August 2022 decision demonstrates that the relevant material, including the individual issues/circumstances raised by the Appellant, were not appropriately considered or given weight in making the decision, pursuant to Clause 8.6 of the Discipline Directive.[6]

  1. [68]
    Having reviewed Mr Parry’s submissions and the decision provided to him, I find myself reaching the same conclusion as Vice-President O'Connor did in Nuske.
  1. [69]
    Vice-President O'Connor also considered the issue of whether Ms Crowley complied with the principles of natural justice and the requirements of the Public Service Act 2008 (Qld) when making the decision. Similar arguments were made on behalf of Mr Nuske as are raised by Mr Parry in his reasons for appeal on this point.[7]  Following extensive consideration of the submissions of the parties in Nuske, Vice-President O'Connor found:

[85]  I consider that the Appellant was provided procedural fairness during the show cause process. The Respondent placed the Appellant on notice in writing with respect to the allegation, including the particulars relied on in support of the allegation. The Respondent provided the Appellant with an opportunity to respond to the allegation and to make submissions in respect of penalty.

[86] As Gleeson CJ said in Re Minister for Immigration and Multicultural Affairs, Ex parte Lam:

Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.

[87] In considering whether there has been a lack of procedural fairness the Commission must ask: "has there been a practical injustice that could have materially affected the decision?" On any view of the evidence, the answer to that question must be, no.

[88] In her written reasons, Ms Crowley clearly sets out the basis for imposing the penalty. In doing so, she had proper regard for Clause 8.6 of the Discipline Directive. Moreover, the penalty imposed falls within the scope of s 188 of the PS Act 2008 which identifies the disciplinary action that may be taken against a public service employee.

[89] In considering the disciplinary process, in particular the imposition of the penalty, I cannot conclude that the relevant circumstances raised by the Appellant were not properly taken into account. I accept that it was open to Ms Crowley, in assessing the appropriate penalty to have regard to the seriousness of the disciplinary finding in respect of Allegation One and furthermore, to form the view that the disciplinary penalty of the reduction in the Appellant's remuneration did not outweigh the serious consequences of his actions.

[90] The Appellant has failed to persuade me that the disciplinary decision made by Ms Crowley was not proportionate to the conduct of the Appellant.

[91] On the evidence before the Commission, I am of the view that the disciplinary decision was fair and reasonable.

[92] In answer to the second question and for the reasons expressed above, I am satisfied that the decision-maker complied with s 190 of the PS Act 2008, the Discipline Directive and the principles of natural justice.[8]

  1. [70]
    I have considered all material available to me and the submissions Mr Parry makes regarding procedural fairness and natural justice. I adopt the same position Vice-President O'Connor arrived at in Nuske as set out above.
  1. [71]
    While Mr Parry says that he has been treated differently to other employees who took leave to avoid Direction 1/21, it appears to me that Mr Parry was suspended from duty with normal remuneration from 21 January 2022 to 30 June 2022.  It appears that Mr Parry accessed long service leave from 24 January 2022 to 20 May 2022.  This means that Mr Parry applied for leave after he had refused to comply with the direction and after the suspension had been implemented. I accept that Mr Parry was advised that even if he was utilising leave entitlements, the Department would consider commencing a disciplinary process against him.
  1. [72]
    The purpose of the appeal is to decide whether the decision appealed against was fair and reasonable. The appeal is not a rehearing of the matter but involves a review of the decision arrived at and the associated decision-making process.[9] I have undertaken the appeal by considering the submissions of the parties, the decision being appealed and material available to me.  I have been assisted by Vice-President O'Connor’s reasoning in Nuske.
  1. [73]
    Mr Parry’s reasons for appeal have not persuaded me that the decision of Ms Crowley dated 22 August 2022 was not fair or reasonable.

Order

  1. The decision appealed against is confirmed.

Footnotes

[1] 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.

[2] See, e.g., Mocnik & Others v State of Queensland (Queensland Health) [2023] QIRC 058 (‘Mocnik’).

[3] [2023] QIRC 199 (‘Nuske’)

[4] Mocnik (n 2).

[5] See the cases cited at (n 1).

[6] Nuske (n 3) [48]-[49].

[7] Appeal notice filed by Mr Parry on 12 September 2022, [15]-[24].

[8] Nuske (n 3) [85]-[92] (citations omitted).

[9] King-Koi v State of Queensland (Department of Education) [2020] QIRC 209.

Close

Editorial Notes

  • Published Case Name:

    Parry v State of Queensland (Department of Education)

  • Shortened Case Name:

    Parry v State of Queensland (Department of Education)

  • MNC:

    [2024] QIRC 42

  • Court:

    QIRC

  • Judge(s):

    Pidgeon IC

  • Date:

    15 Feb 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
2 citations
Jump To
Cite 1 - [2022] QIRC 152
Cite 2 - [2022] QIRC 152
Carr v State of Queensland (Department of Education) [2022] QIRC 188
2 citations
Jump To
Cite 1 - [2022] QIRC 188
Cite 2 - [2022] QIRC 188
Currie (Murray) v State of Queensland (Department of Education) [2022] QIRC 269
2 citations
Jump To
Cite 1 - [2022] QIRC 269
Cite 2 - [2022] QIRC 269
Gorry v State of Queensland (Department of Education) [2022] QIRC 196
2 citations
Jump To
Cite 1 - [2022] QIRC 196
Cite 2 - [2022] QIRC 196
King-Koi v State of Queensland (Department of Education) [2020] QIRC 209
1 citation
Jump To
Cite 1 - [2020] QIRC 209
Mocnik v State of Queensland (Queensland Health) [2023] QIRC 58
2 citations
Jump To
Cite 1 - [2023] QIRC 58
Cite 2 - [2023] QIRC 58
Nicholas v State of Queensland (Department of Education) [2022] QIRC 157
2 citations
Jump To
Cite 1 - [2022] QIRC 157
Cite 2 - [2022] QIRC 157
Nuske v State of Queensland (Department of Education) [2023] QIRC 199
2 citations
Jump To
Cite 1 - [2023] QIRC 199
Cite 2 - [2023] QIRC 199
Prentis v State of Queensland (Department of Education) [2022] QIRC 212
2 citations
Jump To
Cite 1 - [2022] QIRC 212
Cite 2 - [2022] QIRC 212
Schimke v State of Queensland (Department of Education) [2022] QIRC 136
2 citations
Jump To
Cite 1 - [2022] QIRC 136
Cite 2 - [2022] QIRC 136
Tadeo v State of Queensland (Department of Education) [2022] QIRC 177
2 citations
Jump To
Cite 1 - [2022] QIRC 177
Cite 2 - [2022] QIRC 177
Thorley v State of Queensland (Department of Education) [2022] QIRC 133
2 citations
Jump To
Cite 1 - [2022] QIRC 133
Cite 2 - [2022] QIRC 133
Tribe v State of Queensland (Department of Education) [2022] QIRC 203
2 citations
Jump To
Cite 1 - [2022] QIRC 203
Cite 2 - [2022] QIRC 203

Cases Citing

Case NameFull CitationFrequency
Gatongi v State of Queensland (Department of Education) [2024] QIRC 2332 citations
Nicolson v State of Queensland (Department of Education) [2025] QIRC 722 citations
Sankey v State of Queensland (Department of Education) [2024] QIRC 1972 citations
Smith v State of Queensland (Department of Education) [2024] QIRC 2432 citations
1

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