Nicolson v State of Queensland (Department of Education)
[2025] QIRC 72
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- Nicolson v State of Queensland (Department of Education)[2025] QIRC 72
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Nicolson v State of Queensland (Department of Education)[2025] QIRC 72
Nicolson v State of Queensland (Department of Education)[2025] QIRC 72
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Nicolson v State of Queensland (Department of Education) [2025] QIRC 072 |
PARTIES: | Nicolson, Stephen Appellant v State of Queensland (Department of Education) Respondent |
CASE NO: | PSA/2022/809 |
PROCEEDING: | Public Sector Appeal – Disciplinary Decision |
DELIVERED ON: | 14 March 2025 |
MEMBER: | Pratt IC |
HEARD AT: | On the papers |
ORDERS: |
|
CATCHWORDS: | INDUSTRIAL LAW – PUBLIC SECTOR APPEAL – where respondent disciplined appellant for failing to receive the requisite COVID-19 vaccines – where appellant appeals respondent's decision to discipline appellant – where appellant filed appeal form purporting to appeal respondent's decision to suspend the appellant without pay – consideration of sections 101(1), 134 and 324 of the Public Sector Act 2022 (Qld) – consideration of section 562A(3), 562B and 564(3) of the Industrial Relations Act 2016 (Qld) – where appeal form purporting to appeal the respondent's decision to suspend the appellant without pay misconceived – where all of the appellant's arguments are either misconceived or have failed when dealt with in previous proceedings – appeal dismissed. |
LEGISLATION: | Industrial Relations Act 2016 (Qld) s 562A(3), s 562B, s 564(3) Public Sector Act 2022 (Qld) s 101(1), s 324, s 134 |
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 Carr v State of Queensland (Department of Education) [2024] QIRC 210 Colebourne v State of Queensland (Queensland Police Service) (No 2) [2022] QIRC 16 Currie (Murray) v State of Queensland (Department of Education) [2022] QIRC 269 Daley v State of Queensland (Department of Education) [2023] QIRC 277 Davenport v State of Queensland (Department of Education) [2024] QIRC 206 Gatongi v State of Queensland (Department of Education) [2024] QIRC 233 Gorry v State of Queensland (Department of Education) [2022] QIRC 196 Huntington v State of Queensland (Queensland Health) [2022] QIRC 290 Kassam v Hazzard; Henry v Hazzard [2021] NSWSC 1320 Knight v State of Queensland (Queensland Ambulance Service) [2022] QIRC 283 Mackenzie v State of Queensland (Queensland Health) [2023] QIRC 121 Nuske v State of Queensland (Department of Education) [2023] QIRC 199 Nicholas v State of Queensland (Department of Education) [2022] QIRC 157 Parry v State of Queensland (Department of Education) [2024] QIRC 42 Prentis v State of Queensland (Department of Education) [2022] QIRC 212 Radanovic v State of Queensland (Department of Education) [2024] QIRC 225 Radev v State of Queensland (Queensland Police Service) [2021] QIRC 414. Rossiter v State of Queensland (Department of Education) [2024] QIRC 25 Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252 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 Sturgess v State of Queensland (Department of Education) [2024] QIRC 236 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
- [1]Mr Stephen Nicolson ('Appellant'), a teacher at Townsville State High School, filed an appeal on 12 September 2022 against a decision of the State of Queensland (Department of Education) ('Respondent') made on 22 August 2024 ('Decision'). The Decision imposed discipline on the Appellant for not complying with the Department of Education Employment Direction 1/21 – COVID-19 Vaccinations and the Employment Direction 1/22 – COVID-19 Vaccinations ('Direction 1/21') issued on 16 December 2021 ('Directions'). The Directions required the Appellant to receive two COVID-19 vaccinations and provide proof of having done so. The Decision imposed an 18-week deduction in pay (from B03-02 to B03-01) as discipline as well as a reprimand. Ms Anne Crowley, Assistant Director-General, Human Resources, Department of Education was the decision-maker.
- [2]This matter was called on for mention by his Honour, Vice President O'Connor, on 18 April 2024 alongside many matters like it. After being asked by his Honour, the Appellant said that he wished to continue this appeal. Orders issued that day directing the parties to make submissions as to whether the Commission should decide not to hear the appeal pursuant to section 562A(3) of the Industrial Relations Act 2016 ('IR Act').
Background
- [3]On 10 January 2022, Ms Genevieve Gillies-Day, Executive Director, People and Corporate Services with the Department of Education, issued a show cause notice ('First Show Cause Notice'). In it, Ms Gillies-Day decided that the Appellant was liable to discipline under a disciplinary law due to his breach of the Directions, was not able to lawfully attend work and was thus suspended with pay for three months. Ms Gillies-Day sought a response to the proposition that the suspension with pay be converted to one without pay.
- [4]On 16 January 2022, the Appellant responded to the First Show Cause Notice. His arguments ranged from moral and ethical duties of the State, to breaches of the Human Rights Act 2019 (Qld) ('HR Act'), to unconstitutionality of the Queensland legislative basis for issuing the Directions, to claiming personal health reasons for not receiving the vaccine. These latter arguments can be summarised as being concerned about the long-term safety of COVID-19 vaccines and claiming to know people who have experienced adverse reactions. The Appellant also argued that without a risk assessment of the vaccines, he was not satisfied that they were safe.
- [5]On 10 February 2022, the Appellant was suspended without pay.
- [6]On 10 June 2022, Mr David Miller, Executive Director, Early Learning and Development, issued a further show cause notice ('Second Show Cause Notice'). In it, Mr Miller invited the Appellant to show cause as to why discipline should not be imposed in response to the Appellant contravening Direction 1/21 without reasonable excuse.
- [7]On 23 June 2022, the Appellant responded to the Second Show Cause Notice, claiming multiple general practitioners had advised him that they would not administer a COVID-19 vaccine to him because they believed the Respondent was coercing the Appellant into receiving one. The Appellant again argued that there were breaches of the HR Act, claiming coercion and restraint of his freedom to adopt a religion or belief.
- [8]On 1 August 2022, Ms Crowley, responded to the Appellant's abovementioned arguments providing the Appellant with yet another opportunity to show cause as to why he should not be disciplined ('Third Show Cause'). Ms Crowley proposed a reprimand and pay reduction (from B03-02 to B03-01) for 20 weeks, stating that none of the Appellant's arguments constituted a reasonable excuse for not complying with the Direction.
- [9]On 7 August 2022, the Appellant responded to the Third Show Cause Notice, arguing this time that there had been an absence of consultation in contravention of the Work Health and Safety Act 2011 (Qld), and which was relevant to why he had contravened the Directions. The Appellant also argued, amongst other things such as having an otherwise unblemished employment record, that the reduction in pay compounded the effect of his period of unpaid suspension, arguing also that the discipline was unlawful.
- [10]On 22 August 2022, Ms Crowley made the Decision, which the Appellant appealed on 12 September 2022 by filing a Form 89 – Appeal notice ("Notice of Appeal").
- [11]On 10 May 2024, the Appellant also attempted to file as part of this matter, another Form 89 – Appeal notice. This second Form 89 purported to appeal the 10 February 2022 decision to convert his paid suspension to one without pay.
Legal principles
Relevant legislation
- [12]The Public Sector Act 2022 ('PS Act') commenced on 1 March 2023 and replaced the 2008 legislation that was in force at the time this appeal was filed. The effect of s 324 of the PS Act is that this appeal must be heard and decided under Chapter 3, Part 10 of the PS Act, even though this appeal was brought under the previous legislation. Hence, pursuant to s 134 of the PS Act, this appeal must be heard and determined in accordance with Chapter 11 of the IR Act.
- [13]Subsection 101(1) of the PS Act says:
- (1)A public sector employee’s chief executive may, by notice, suspend the employee from duty if the chief executive reasonably believes—
- (a)the employee is liable to discipline under a disciplinary law; or
- (b)the proper and efficient management of the entity might be prejudiced if the employee is not suspended.
- [14]Subsection 562A(3) of the IR Act says:
- (3)The commission may decide it will not hear a public service appeal against a decision if—
- (a)the appellant has made an application to a court or tribunal relating to the decision, whether or not the application has been fully decided; or
- (b)the commission reasonably believes, after asking the appellant to establish by oral or written submissions that the appellant has an arguable case for the appeal, that the appeal—
- (i)is frivolous or vexatious; or
- (ii)is misconceived or lacks substance; or
- (iii)should not be heard for another compelling reason.
- [15]Subsection 564(3) of the IR Act relevantly provides for a limitation period for filing an appeal. In this case, it provides that the appeals of this nature must be filed within 21 days of the appellant receiving the relevant decision.
Relevant case law
Case law relevant to the meaning of "fair and reasonable"
- [16]In Colebourne v State of Queensland (Queensland Police Service) (No 2) ('Colebourne'),[1] his Honour, Merrell DP, considered the term 'fair and reasonable.' His Honour held that the term needs to be given its ordinary meaning with the aid of the context of s 562B of the IR Act.[2] Noting that 'fair and reasonable' is not the same as the 'legality of a decision' test applied in judicial review proceedings, his Honour held that whether a decision was 'fair and reasonable' allows consideration of the decision and the process used to reach it.[3]
Case law relevant to the exercise of discretion under section 562A
- [17]In Nuske v State of Queensland (Department of Education) ('Nuske'),[4] his Honour, O'Connor VP, considered a similar case to this one. That included assessment of Ms Crowley's consideration of the individual issues and circumstances where mail merge technology and template letters were used. Similarly to this case, the appellant claimed that relevant material unique to his case had to have been overlooked citing the following in support:[5]
- a.there were a large number of disciplinary matters delivered simultaneously within a short timeframe;
- b.the discipline and the reasons for discipline were identical between the appellant other employees who were also disciplined; and
- c.the appellant's mitigating circumstances were not considered.
- [18]Ms Crowley’s evidence in Nuske included that she had considered every single case, at both the penalty exposure and discipline stages of the process.[6] That was possible because there were many undisputed facts and so not every case required processing the same amount of information.[7] Further saving time was the fact that a large number of employees failed to respond at all, whilst others utilised template responses. Hence, the unique matters raised in each case were limited.[8] Ms Crowley also gave evidence that she took an incremental approach to discipline because, depending on what level each employee’s role was at, a penalty in each case was linked to the relevant pay grade and was therefore more proportionate to the level of the role.[9] His Honour accepted Ms Crowley's evidence and dismissed the arguments about a failure to appropriately consider individual cases accordingly.
- [19]Claims about the process in Nuske constituting a denial of natural justice were also considered and dismissed.[10] His Honour observed that ample notice was given as to the allegations and particulars thereof and that there was ample opportunity afforded to the appellant to respond to the allegations and make submissions about the penalty.[11]
- [20]
- [21]The Appellant's arguments that COVID-19 vaccines were unsafe and ineffective have also been dealt with. In Mackenzie v State of Queensland (Queensland Health) ('Mackenzie'),[14] the appellant submitted that she did not apply comply with the Direction because of concerns with the safety and effectiveness of the vaccines.[15] A Full Bench of this Commission concluded that those arguments amounted to mere 'vaccine hesitancy' and that vaccine hesitancy was not a reasonable excuse for failing to comply.[16]
- [22]Claims about being unable to give informed consent to vaccination have also been dealt with. In Knight v State of Queensland (Queensland Ambulance Service) ('Knight'),[17] the Appellant contended informed consent was impossible to give until and after the relevant doctors and religious advisors had been consulted.[18] The Appellant argued that the effect of the Directions was that the Appellant could not give free and informed consent.[19] McLennan IC observed that there was no obligation to continue working for the respondent and so there was always a choice available to not be vaccinated.[20] Considering and following Kassam v Hazzard; Henry v Hazzard,[21] McLennan IC observed that where one consents to something in response to a stated condition of continued employment, it is still consent.[22]
- [23]The Direction has also been considered by his Honour, O'Connor VP, in Rossiter v State of Queensland (Department of Education). His Honour held the Direction to be lawful and reasonable and that it was a serious matter to refuse to follow such a direction from an employer.[23]
- [24]In Tilley v State of Queensland (Queensland Health) ('Tilley'),[24] Dwyer IC dealt with many arguments that had been run and failed in the Commission previously.[25] Dwyer IC held that the Commission's resources must be reserved for matters of genuine controversy and not for matters where no unique or novel arguments are made. In deciding not to hear the matter, Dwyer IC determined that the appellant’s arguments had all been heard previously and had all failed.[26]
Submissions
- [25]The parties made written submissions, all of which I have considered. I summarise only those submissions below that are most relevant to these reasons.
Notice of appeal
- [26]In his Notice of Appeal, the Appellant argued that it was unreasonable of the Respondent to refuse his request to work from home indefinitely when he had previously been permitted to do so. The Appellant claims that he in fact complied with the Directions by not attending the workplace over the relevant period of time. The Appellant argues in this appeal that he was denied procedural fairness and hence that there was a denial of natural justice because, as he asserts, his arguments were not taken into account. The use of template letters and mail merge and automated response sending technology is also said to have constituted a denial of procedural fairness and thus natural justice. The alleged denial of procedural fairness is said to amount to the Decision not being fair and reasonable.[27]
The Appellant's submissions
- [27]The Appellant submits that he should have been paid over the course of his suspension. He submits he was willing and able to work from home and should have been allowed to do so on a long-term basis. The Appellant again challenged the safety and efficacy of various vaccines. The Appellant concludes that, in light of the foregoing reasons, he was therefore reasonably excused from complying with the Directions.
The Respondent's submissions
- [28]The Respondent contends that the Decision was fair and reasonable. In response to the Appellant's claim that he was denied natural justice, the Respondent cites Nuske and contends that the claims relating to the denial of natural justice cannot be accepted. Furthermore, several authorities were cited by the Respondent in support of the submission that the Directions have repeatedly been found to be lawful and reasonable,[28] and the Respondent submits that the Appellant never proffered a reasonable excuse for failing to comply with the Directions. The Respondent submits that not complying with a reasonable direction from an employer is a serious failure.[29]
- [29]The Respondent rejects the proposition that the Appellant could work from home on a long-term basis as a means of escaping the obligation to comply with the Directions.[30] As to the Appellant's purported second Notice of Appeal filed on 10 May 2024 seeking to appeal the 10 February 2022 decision to suspend the Appellant without pay, the Respondent argued that an appeal of that decision is out of time and cannot be heard. Citing Tilley v State of Queensland (Queensland Health),[31] the Respondent argued that the Commission should exercise its discretion under section 562A(3)(b) of the IR Act because all the arguments raised in the Appellant's appeal have either previously failed or are misconceived and lacking in substance.
The Appellant's submissions in reply
- [30]The Appellant asserted that his late appeal of the 10 February 2022 without pay suspension decision should be considered. The basis of that assertion is unclear. The Appellant submitted that it is not fair and reasonable to link these decisions 'given there are so many things that could be appealed.' The Appellant also submitted that it was fair and reasonable for him to expect to be back-paid for his period of suspension without pay because the arguments in both notices of appeal are the same and 'there is no valid reason for both to not be linked.'
- [31]The Appellant repeats arguments about safety and efficacy of vaccines and that he was being coerced into receiving a vaccine. The Appellant repeated that he provided a reasonable excuse for not following the Directions because he had concerns with vaccine safety and efficacy. The Appellant submits in support of this point that it was unfair and unreasonable to 'expect another living person to take an experimental vaccine that has not been proven beyond reasonable doubt to be safe and effective and has since been proven to be ineffective and to have significant side effects.' The Appellant also argues that the fact he had previously been allowed to work from home was proof that it was unfair not to allow him to do so indefinitely.
- [32]The Appellant submitted that it would be in the public interest to hear the matter because:
[t]he public would be highly interested to know active teachers are still being pursued by the Department of Education by means of further financial penalty for their choice not take an experimental vaccine during the pandemic. It is in the public interest to prevent such a perversion of justice in the future.
Consideration
The second appeal cannot be heard in this proceeding
- [33]The Appellant's Form 89 appeal filed on 10 May 2024 clearly seeks to appeal the decision of 10 February 2022 to convert his suspension from one with pay to one without pay. That is an entirely separate and distinct decision to the one under appeal presently and cannot be decided as part of these proceedings.
Should the appeal be heard?
- [34]The argument that the Appellant was actually following the Directions by not attending the workplace is misconceived. It is predicated on an interpretation of the Directions that is plainly wrong. That interpretation is that the Directions simply instructed employees to not attend work if they were unvaccinated, and nothing more. That, of course, is not what the Directions said. As noted above, the Directions most relevantly said that employees must be, unless exempt, vaccinated within a defined period of time so that they could continue to work as directed. This argument must be rejected.
- [35]The Appellant's argument that the Decision is not fair and reasonable because he could have been allowed to work from home indefinitely on the basis that it had been allowed earlier during the lockdowns is equally misconceived. That work from home arrangement was clearly temporary and far from ideal. It was no long-term solution and it was certainly not a legitimate means to justify not complying with the Directions. As well, his Honour, Merrell DP, rejected in Winter this argument about being willing and able to work (unvaccinated) amounting to being 'available for work.' It was an express condition of the employment that the Appellant be vaccinated or exempt. He was neither. He chose not to be vaccinated, knew he was not exempt and therefore did not meet the condition of being 'available for work.' I therefore reject this argument.
- [36]The Appellant's concerns about the safety and efficacy of COVID-19 vaccines, as well as concerns that risk assessments were inadequate, amount to mere 'vaccine hesitancy.' The argument that 'vaccine hesitancy' amounts to a reasonable excuse has repeatedly been rejected in previous cases before the Commission, as noted above. They are no basis for refusing or failing to comply with the Directions. The 'vaccine hesitancy' argument here is no different to those run in previous cases, and so reject this argument.
- [37]The Appellant also argued that the Direction effectively deprived him of the free will to consent to being vaccinated. There was no force or deprivation of choice on my assessment. This case is very much like the one in Knight. Even at this early vantage point it is abundantly clear that the Appellant did actually exercise a choice. He choose not to be vaccinated, knowing he was not exempted, and engaged in the process of reviews and appeals. The Appellant also had the choice, as highlighted in Knight, to choose not to work for the Respondent in response to the Direction. I do not see how the Respondent was coercing the Appellant into receiving the vaccine. Consequently, I reject that the Direction deprived the Appellant of the ability to consent to receiving the vaccine.
- [38]I accept the submission that the very substantial list of authorities referred to by the Respondent demonstrates that the Directions were lawful and reasonable. I also accept the submission that challenges to the reasonableness or lawfulness of the Directions have been comprehensively dealt with by the Commission previously. It is obvious that the Appellant failed to comply with the Directions without reasonable excuse and that his doing so was a serious breach. The discipline imposed has been held by the Commission to have been fair and reasonable in a vast number of cases very much like this one.[32]
- [39]As noted above in Nuske, his Honour, O'Connor VP, dealt comprehensively with the arguments on procedural fairness in this process. His Honour found the process to be fair and reasonable.
- [40]I cannot see anything of substance in the Appellant's public interest argument. It appears to be misconceived. Whether the Commission comes to reasonably believe that it is not in the public interest to hear the matter will boil down to whether the appeal is misconceived or whether there is some other compelling reason. The fact that the Appellant thinks the public might be interested in hearing about the Appellant’s perspective on his interactions with the Respondent over the issue of vaccinations has little bearing on the formation of that reasonable belief.
- [41]I accept the submissions made by the Respondent that this is a case where the Appellant’s arguments are either misconceived or have failed in previous cases. Those parts of the appeal that are misconceived should not be heard because it would not be in the public interest to waste resources on dealing with arguments that are misconceived. The balance of the appeal is comprised of arguments that have all failed previously in similar cases. It would be a wasteful misuse of public resources to hear and determine those arguments yet again. In my view, that is a compelling reason as to why it would not be in the public interest to hear and determine those parts of the appeal.
- [42]I conclude that this case is one that should not be heard. I order accordingly.
Orders
- The appeal will not be heard.
- The Decision is confirmed.
Footnotes
[1] [2022] QIRC 16 ('Colebourne').
[2] Ibid [25], citing Pope v Lawler [1996] FCA 1446.
[3] Ibid [22]-[23], citing Goodall v State of Queensland (Unreported decision of the Supreme Court of Queensland Dalton J, 10 October 2018) regarding the former equivalent provisions in s 201 of the Public Service Act 2008 (Qld).
[4] [2023] QIRC 199 ('Nuske').
[5] Ibid [38], [43].
[6] Ibid [42].
[7] Nuske (n 4) [46].
[8] Ibid [47].
[9] Ibid [41].
[10] Ibid [59], [89].
[11] Ibid [85].
[12] [2022] QIRC 350.
[13] Ibid [22].
[14] [2023] QIRC 121.
[15] Ibid [49].
[16] Ibid [52].
[17] [2022] QIRC 283 ('Knight').
[18] Ibid [41].
[19] Ibid [26].
[20] Ibid [49].
[21] [2021] NSWSC 1320.
[22] Knight (n 17) [50].
[23] [2024] QIRC 25 [30], [33] citing Grant v BHP Coal Pty Ltd (No 2) [2015] FCA 1374.
[24] [2023] QIRC 262.
[25] Ibid [30]-[33].
[26] Ibid [33].
[27] Citing Colebourne v State of Queensland (Queensland Police Service) [2022] QIRC 17, at [39]-[40]; Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252.
[28] 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.
[29] Huntington v State of Queensland (Queensland Health) [2022] QIRC 290, [54]; Bakhash v State of Queensland (Department of Education) [2022] QIRC 362, [27].
[30] Prentis v State of Queensland (Department of Education) [2022] QIRC 212, [57]-[58]; Radev v State of Queensland (Queensland Police Service) [2021] QIRC 414.
[31] [2023] QIRC 262, [33].
[32] See for example: Nuske v State of Queensland (Department of Education) [2023] QIRC 199; Parry v State of Queensland (Department of Education) [2024] QIRC 42, [87] deciding that the 18 week reduction in pay and reprimand were fair and reasonable discipline, and Daley v State of Queensland (Department of Education) [2023] QIRC 277, [25]-[26]; Stacey v State of Queensland (Department of Education) [2024] QIRC 220, [69]-[70]; Radanovic v State of Queensland (Department of Education) [2024] QIRC 225, [39]; Davenport v State of Queensland (Department of Education) [2024] QIRC 206, [48]; Carr v State of Queensland (Department of Education) [2024] QIRC 210, [60]-[61]; Sturgess v State of Queensland (Department of Education) [2024] QIRC 236, [47]; Gatongi v State of Queensland (Department of Education) [2024] QIRC 233, [48]; Sankey v State of Queensland (Department of Education) [2024] QIRC 197, [54] deciding not to hear appeals on the decision to impose an 18 week reduction in pay and reprimand on the basis the arguments have failed previously.