Vaughan v State of Queensland (Department of Education)
[2025] QIRC 75
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- Vaughan v State of Queensland (Department of Education)[2025] QIRC 75
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Vaughan v State of Queensland (Department of Education)[2025] QIRC 75
Vaughan v State of Queensland (Department of Education)[2025] QIRC 75
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Vaughan v State of Queensland (Department of Education) [2025] QIRC 075 |
PARTIES: | Vaughan, Carol Leigh Appellant v State of Queensland (Department of Education) Respondent |
CASE NO: | PSA/2022/885 |
PROCEEDING: | Public Sector Appeal – Disciplinary Decision |
DELIVERED ON: | 18 March 2025 |
MEMBER: | Pratt IC |
HEARD AT: | On the papers |
ORDERS: |
|
CATCHWORDS: | INDUSTRIAL LAW – PUBLIC SERVICE APPEAL – appeal against disciplinary decision – where appellant employed by the State of Queensland as a Teacher – where Employment Direction 1/22 – COVID-19 Vaccinations required the appellant to receive vaccinations – where appellant failed to comply – decision issued substantiating allegation of failing to comply with the direction without a reasonable excuse – decision to reprimand appellant and reduce the appellant's renumeration for a period of 18 weeks – consideration of whether to hear the appeal – held that the appeal has no prospects of success – appeal is not to be heard pursuant to s 562A of the Industrial Relations Act 2016 (Qld) |
LEGISLATION: | Industrial Relations Act 2016 (Qld) s 562A Public Service Act 2008 (Qld) s 193 Public Sector Act 2022 (Qld) s 324 Work Health and Safety Act 2011 (Qld) s 48 Employment Direction 1/22 – COVID 19 Vaccinations Department of Education Employment Direction 1/21 – COVID 19 Vaccinations COVID-19 Vaccination Requirements for Workers in a high-risk setting Direction (No. 2) |
CASES: | Gundrum v State of Queensland (Queensland Health) [2022] QIRC 226 Kioa v West (1985) 159 CLR 550 Mackenzie v State of Queensland (Queensland Health) [2023] QIRC 121 Mocnik v State of Queensland (Queensland Health) [2023] QIRC 058 Nuske v State of Queensland (Department of Education) [2023] QIRC 199 Radanovic v State of Queensland (Department of Education) [2024] QIRC 225 Rossiter v State of Queensland (Department of Education) [2024] QIRC 25 Tilley v State of Queensland (Queensland Health) [2023] QIRC 262 Winter v State of Queensland (Department of Education) [2022] QIRC 350 |
Reasons for Decision
- [1]On 22 August 2022, the State of Queensland (Department of Education) ('Respondent') disciplined Ms Carol Vaughan ('Appellant') by reducing her remuneration from Senior Teacher A23-04 to Teacher B23-04 and reprimanding the Appellant ('Decision'). The decision-maker was Ms Anne Crowley, Assistant Director-General, Human Resources, Department of Education. The Appellant now appeals the Decision by way of an appeal filed on 13 September 2022.
- [2]This case having laid dormant for a considerable time while other cases raising the same arguments were heard and determined appears to have been primarily why, on 18 April 2024, this matter was mentioned alongside several others that were of a similar nature. At that hearing, the Appellant indicated to his Honour, O'Connor VP, that she still wanted to proceed with the appeal. Consequently, the Registry issued orders directing the parties to address whether the Commission should decide not to hear the appeal pursuant to s 562A(3) of the Industrial Relations Act 2016 ('IR Act'). The Appellant requested an extension of time to comply with the dates listed in that order. The Registry granted the extension of time and issued directions to that effect on 21 May 2024.
Issue
- [3]The issue before the Commission is whether I should exercise the discretion to not hear the appeal pursuant to s 562A(3) of the IR Act.
Relevant background
- [4]The Appellant is teacher at Dayboro State School. She has been a teacher for 41 years and has an otherwise unblemished employment record. The Respondent issued the Department of Education Employment Direction 1/21 – COVID 19 Vaccinations on 15 December 2021, which directed the Appellant to receive two doses of a COVID-19 vaccine and provide evidence of having done so ('Direction').[1] The Appellant did not comply with the Direction.
- [5]The Appellant applied for a medical exemption on 7 January 2022 because she had registered for a Covax-19 or Spikogen trial. The Respondent denied that application because the Appellant did not provide medical information to support the application.
- [6]The Respondent suspended the Appellant with pay on 3 February 2022. The Respondent then invited the Appellant to show cause as to why she should not be suspended without pay. On 14 February 2022, The Appellant applied for a four-month temporary Australian Technical Advisory Group on Immunisation ('ATAGI') exemption because she contracted COVID-19. The Respondent approved an exemption and validated it from 29 March 2022 to 19 May 2022. The Respondent says it kept the Appellant suspended on pay from 3 February 2022 to 31 May 2022. The Respondent then suspended the Appellant without pay because the Appellant had not provided evidence to warrant extending her exemption beyond 19 May 2022. That decision to suspend without pay was not the subject of any appeal.
- [7]By way of a letter dated 14 June 2022, Mr David Miller, Executive Director, Early Learning and Development, invited the Appellant to respond within 14 days to the allegation that she had contravened the Direction without reasonable excuse ('Allegation'). The Appellant did not respond.
- [8]On 1 August 2022, Ms Crowley issued a decision in writing to the Appellant stating that the Respondent had substantiated the Allegation. That decision was not the subject of any appeal by the Appellant. Within that decision was the finding that the Allegation was substantiated. Ms Crowley invited the Appellant to show cause as to why the Appellant should not be disciplined by way of a reduction in pay from A23-04 to B23-04 for 20 weeks and a reprimand.
- [9]On 8 August 2022, the Appellant responded to the show cause notice raising five arguments (discussed below) as to why the proposed discipline should not be imposed.
- [10]On 22 August 2022, Ms Crowley issued the Decision advising the Appellant that the Respondent would discipline the Appellant in the form of a reduction in pay from A23-04 to B23/04 for 18 weeks and a reprimand. That disciplinary decision is the only decision that is the subject of this appeal.
Relevant law
- [11]This appeal was initially brought under the Public Service Act 2008 (Qld) ('repealed Act'). The repealed Act was replaced with the Public Sector Act 2022 ('PS Act') on 1 March 2023. Section 324 of the PS Act relevantly provides for the hearing of an appeal such as this one (started under the repealed Act) being heard pursuant to Chapter 3, Part 10 of the PS Act, the effect of which is that this appeal is to be determined in accordance with Chapter 11 of the IR Act.
- [12]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.
- [13]This appeal also involves the application of the COVID-19 Vaccination Requirements for Workers in a high-risk setting Direction (No. 2) ('CHO Direction'). Paragraph 10 of the CHO Direction says:
A worker must not enter and remain in, work in, or provide services in a high-risk setting unless the worker complies with the COVID-19 vaccination requirements in paragraph 18.
- [14]Paragraph 21 of the CHO Direction says:
- Paragraph 10 does not apply to a worker who is unable to be vaccinated due to a medical contraindication where the responsible person for the high-risk setting:
- a.assesses the risk to other staff, clients and other persons at the high-risk setting; and
- b.on commencement of this Direction, on the worker’s next day of work, the worker undertakes a COVID-19 test before commencing duties and every second day thereafter, and provides a negative test result to the responsible person for the high-risk setting as soon as reasonably practicable after the result is received; and
- c.the worker uses personal protective equipment as required by the responsible person for the high-risk setting.
Relevant case law
- [15]In Nuske v State of Queensland (Department of Education) ('Nuske'),[2] his Honour, O'Connor VP, considered a teacher's appeal against the Respondent's decision to discipline the teacher for failing to comply with the Direction.[3] The appeal centred on whether the same disciplinary process as was carried out in the present case was procedurally fair.[4] The appellant in that case, much like the Appellant here, argued that the use of template responses sent out using mail merge technology, the uniformity of outcomes and timing across different employees amounted to a denial of natural justice due to unique elements of each case not being considered. His Honour considered the evidence of the disciplinary process and held that the process was fair and reasonable[5].
- [16]In Rossiter v State of Queensland (Department of Education) ('Rossiter'),[6] his Honour, O'Connor VP, considered an appeal of a decision to suspend a teacher without pay. As part of the appeal, the Appellant argued the suspension without pay was not fair and reasonable because the Direction was unlawful and unreasonable. His Honour first considered the lawfulness and reasonableness of the Direction and found that it was indeed lawful and reasonable. His Honour also found that the failure to obey that lawful and reasonable direction was a serious matter.[7] His Honour consequently held that the decision to suspend the teacher without pay for not complying with the Direction was fair and reasonable.[8]
- [17]A Full Bench of this Commission in Mackenzie v State of Queensland (Queensland Health) ('Mackenzie') considered an appellant's contention that their reasonable excuse for not complying with the Direction was that were concerned about safety and efficacy of COVID-19 vaccines.[9] The Full Bench found that this concern amounted to 'vaccine hesitancy' and that having vaccine hesitancy was not a reasonable excuse for failing to comply with the Direction.[10]
- [18]In Winter v State of Queensland (Department of Education) ('Winter'),[11] the appellant argued that the decision not to repay her the money withheld on suspension without pay was not fair and reasonable. The basis of that claim was the assertion that the appellant was 'able' to attend the workplace while she was suspended.[12] His Honour, Merrell DP, rejected that argument and found that being 'able' to work was not the same as being 'available for work', which required compliance with the relevant direction to be vaccinated unless exempted.[13]
- [19]In Gundrum v State of Queensland (Queensland Health),[14] Dwyer IC found that employees do not have right to demand a document copy of a risk assessment.[15] In Mocnik v State of Queensland (Queensland Health),[16] his Honour, O'Connor VP, confirmed that employers like the Respondent are under no obligation to provide risk assessments under the Work Health and Safety Act 2011 upon request from individual applicants.[17]
- [20]In Tilley v State of Queensland (Queensland Health) ('Tilley'),[18] the appellant appealed the decision to deny her an exemption from being vaccinated against COVID-19.[19] The appellant ran many arguments that had previously been run unsuccessfully before the Commission.[20] Dwyer IC dismissed the appeal and found 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.[21]
- [21]In Patterson v State of Queensland (Queensland Corrective Services) (No.2) ('Patterson'),[22] I considered appeals of discipline decisions which shared the same substratum of facts with earlier decisions finding that wrongdoing had occurred. I ultimately concluded that those earlier 'finding decisions' were separately appealable, with 21 day limitation periods for starting such appeals. Ordinarily those earlier decisions cannot be folded into and appealed as part of an appeal of the final decision imposing discipline.[23]
Submissions
The appeal notice
- [22]The Appellant's singular point in the appeal notice is that her submissions in the show cause process were not adequately considered by the Respondent. The Appellant submits she made the following five arguments during the show cause process as to why she should not be disciplined for not following the Direction:
- She held an approved medical exemption for part of the time the Direction was in force, meaning the Appellant was only in breach of the Direction for around a month;
- She held an impeccable employment record with the Respondent spanning over 41 years duration;
- She had personal medical issues that caused her to be hesitant to receive a vaccine for COVID-19;
- She hoped to be part of the 'COVAX 19 trial'; and
- She had already experienced financial and emotional stress due to the prior suspension from duty without pay.
- [23]The Appellant said the lack of adequate consideration of these arguments is evidenced by the Appellant's outcome email being sent as part of a mail merge process and by the fact that she received a disciplinary decision that was identical to at least a hundred others given to employees of the Respondent who were in similar situations at about the same time.
- [24]The Appellant cites the decision of his Honour, Mason J, in Kioa v West ('Kioa')[24] that decision-makers have a common law duty to accord procedural fairness when making administrative decisions which affect rights, interests and legitimate expectations when there is no clear contrary statutory intention.[25] The Appellant also contends that s 190 of the PS Act establishes a statutory intention to afford the kind of procedural fairness that his Honour referred to in Kioa. The Appellant concludes that the lack of a 'tailored' response from the Respondent effectively deprived her of a fair hearing. The Appellant argues that the alleged failure to afford procedural fairness makes the decision not fair and reasonable.[26]
The Appellant's submissions
- [25]The Appellant filed submissions on 10 June 2024. Her submissions were, however, not directed at addressing the test under s 562A of the IR Act as ordered. Instead, these submissions sought to enlarge the grounds of appeal by challenging the earlier decision to suspend without pay. The Appellant also restated several of her earlier arguments raised in her appeal notice.
- [26]The Appellant challenges the earlier suspension decision on the basis that she held a medical exemption for part of the relevant period of time and that she had freely entered the workplace setting while her exemption was in force. The assertion is that the Respondent failed to consider the significance of that exemption. The Appellant also argues that the Decision was not fair and reasonable because she was willing to comply with the requirements within paragraph 21 of the CHO Direction (rapid antigen testing, distancing, personal protective equipment, etc).
The Respondent's submissions
- [27]The Respondent first makes the jurisdictional objection that none of the decisions in relation to the suspension from duty can be the subject of the current appeal because the Appellant did not file an appeal against those decisions in time and because they are not the Decision.
- [28]The Respondent submits that the Appellant effectively has two arguments in support of her appeal. The first argument is that there was no risk assessment provided. The second argument is that the Appellant suffered a significant financial loss. As for the second argument, the Respondent submits that the Appellant was only suspended without pay for four weeks and that the proposed disciplinary action has not yet been imposed. The Respondent notes that the weekly difference in the Appellant's salary would be $91.55.
- [29]The Respondent submits, correctly in my opinion, that a clear starting point is that the Direction has repeatedly been found to be lawful and reasonable.[27]
- [30]The Respondent then addresses the Appellant's claimed medical contraindications of being in the COVAX-19 trial and of having blood clots. In response, the Respondent submits that the Appellant did not provide evidence of participating in a COVAX-19 trial or of an approved ATAGI medical contraindication for her claimed blood clots. I surmise that the Respondent argues that these claimed medical contraindications did not provide a reasonable excuse for failing to comply with the Direction because they were insufficiently evidenced. The Respondent therefore also argues that the claimed (but insufficiently evidenced) medical contraindications were, in reality, concerns about the safety and efficacy of the vaccines amounting to 'vaccine hesitancy.' The Respondent does note that the Appellant had a temporary medical contraindication from a COVID-19 infection that did create a reasonable excuse for not complying with the Direction for the time that the temporary medical contraindication was in force. However, as I best understand it, the Respondent's argument is that the medical contraindication did not exist for the entirety of the time the Direction was in force. Therefore, for the remainder of that time, the Appellant did not have a medical contraindication amounting a reasonable excuse for not complying with the Direction.
- [31]The Respondent submits that the Appellant's arguments (raised in the show cause and rehearsed in this appeal) have all already been extensively considered by the Commission in Mocnik and Nuske and have been rejected. The Respondent consequently submits that the Commission should exercise its discretion under s 562A(3)(b) of the IR Act because the Appellant's arguments have been previously heard and determined by the Commission or are otherwise misconceived or lacking in substance.[28]
- [32]The Respondent further submits that the decision to impose the disciplinary action was fair and reasonable in any case. The Respondent argues that it was inevitable that the Appellant would be sanctioned for her failure to comply with the Direction in circumstances where the lawful and reasonable nature of the Direction is well established.[29] The Respondent submits that a reprimand alone would not adequately reflect the Appellant's insubordination.
- [33]The Respondent notes that the Appellant was willing to return to the workplace but submits that the Appellant was only entitled to be paid for hours performed as a contract/relief teacher while she had the abovementioned approved temporary medical exemption. The Respondent further submits that the Appellant was not required to perform contract/relief teaching while she was not vaccinated.
Consideration
- [34]I accept the Respondent's submission that earlier suspension decisions are outside the scope of this appeal. The suspension decisions (to suspend on pay in the first place and then to suspend without pay) are entirely different decisions to the disciplinary decision. I earlier outlined how different decisions by an employer such as the Respondent can draw on the substantially the same substratum of facts but those different decisions are ultimately separately appealable decisions. The Appellant did not appeal any of the Respondent's earlier suspension decisions. The Appellant offers no submission as to why any appeal of those earlier suspension decisions should be heard. I consequently cannot hear an appeal of any of those suspension decisions in this appeal. The appeal currently under consideration is confined to the disciplinary decision made on 22 August 2022.
- [35]The Appellant's sole ground of appeal is that the Respondent denied the Appellant procedural fairness when imposing the disciplinary decision by adopting a cookie-cutter approach to the disciplinary process. However, his Honour, O'Connor VP, found in Nuske that this disciplinary process did afford procedural fairness to the people who were subject to it and so the process was fair and reasonable. The Appellant's argument cannot possibly succeed. The point has been previously argued and failed. The futility of the Appellant's argument that she was denied procedural fairness leads me to conclude that there is no point in hearing that argument. This conclusion is a compelling reason to not hear this appeal in my opinion.
- [36]As to the Appellant's other arguments, the Appellant fails to establish she had a medical contraindication as result of being vaccinated in the COVAX-19 trial and having blood clots. Even if the Appellant had done so, this argument is misconceived. That is because it is really a challenge to the earlier suspension decisions and the decision finding that the Appellant failed to comply with the Direction without a reasonable excuse. Even absent that fundamental flaw, this argument is without substance. The Appellant simply did not provide evidence of vaccination or of having blood clots to the Respondent. The Respondent was therefore justified in concluding that the Appellant had not established that she had the claimed medical contraindication. Consequently, the argument is doomed to fail. The fact this argument is without any prospects is a compelling reason to not hear it in my opinion.
- [37]The Appellant's argument that the Decision was not fair and reasonable because she was able to work is also futile. That same argument was dispensed with by his Honour, Merrell DP, in Winter, for reasons described earlier. This argument is also without any prospects, which is a compelling reason to not hear it in my opinion.
- [38]The Appellant's argument that she had already experienced financial and emotional stress from the suspension without pay is likewise doomed to fail. The argument is first misconceived because it challenges the earlier decision to suspend without pay which is not reviewable as part of this appeal. But insofar as it challenges the severity of the discipline, the argument has failed numerous times in previous cases.[30] Consequently, that is a compelling reason in my opinion as to why this argument should not be heard.
- [39]The Appellant argues that she was able to enter high-risk settings other than the school during the relevant period while her approved medical exemption was in force. I surmise the argument here is that the decision to discipline her was not fair and reasonable because it was arbitrary to refuse to let her enter schools when she could enter other high-risk settings. This argument fails on two grounds. First, it is misconceived because it is actually a challenge to the earlier decision finding that the Appellant failed to comply with the Direction without a reasonable excuse, which cannot be part of this appeal. Second, it is entirely without substance. That is because the fact that those in control of other high-risk settings, which the Respondent had no control over, took different approaches to who could enter those settings, has no bearing on the approach the Respondent took to who could enter its own high-risk setting. To find otherwise would be to imply that the Respondent is obliged to act in the same way as other government departments despite its own operational needs being unique. Consequently, the Appellant's argument is entirely without merit. In my opinion, that is a compelling reason not to hear it.
- [40]The Appellant's argument that the Decision was not fair and reasonable because she was willing to comply with the CHO Direction is also without merit. It is misconceived because it challenges the earlier decision finding that there was no reasonable excuse for failing to comply with the Direction, and so cannot be heard as part of this appeal. Even if it were not misconceived, this argument is meritless. Paragraph 21 of the CHO Direction effectively provides a form of exception to workers who are unable to be vaccinated due to a medical contraindication. The key word there is 'unable.' The Appellant's only evidenced medical contraindication was fleeting - that she had been infected with COVID-19 and so was temporarily immune from COVID-19. Even so, the Appellant did not provide any evidence proving that the claimed medical contraindication rendered her unable to receive a vaccine for either the period of the contraindication or after. The exception in paragraph 21 of the CHO Direction therefore did not apply at any stage while the Direction was in force. The argument could not possibly succeed, which in my opinion, is a compelling reason not to hear it.
Conclusion
- [41]Having considered the single ground of appeal, and the various arguments that appear to expand that appeal as part of this process, I conclude that all the arguments put forward by the Appellant are either misconceived, have been previously rejected by this Commission or are without merit. I therefore conclude that the matter should not be heard pursuant to the discretion within s 562A(3)(b)(ii) of the IR Act. I order accordingly.
Orders
- 1.The appeal is not be to heard.
- 2.The Decision is confirmed.
- I certify that the preceding [41] paragraphs are a true copy of the Reasons for Decision of Industrial Commissioner Pratt.
- D. G. PRATT, INDUSTRIAL COMMISSIONER: ………………………………
- (Signature)
- Dated: …………..
- NOTE: THIS CERTIFICATION IS TO BE REMOVED FROM THE DECISION BEFORE IT IS RELEASED TO THE PARTIES
Footnotes
[1] The Department of Education Employment Direction 1/21 – COVID 19 Vaccinations was superseded by the Employment Direction 1/22 – COVID 19 Vaccinations in March 2022 but the COVID 19 vaccination requirements did not change.
[2] [2023] QIRC 199 ('Nuske').
[3] Ibid [1]-[6].
[4] Ibid [5].
[5] Ibid [85], [87].
[6] [2024] QIRC 25 ('Rossiter').
[7] Ibid [30], [33], citing Grant v BHP Coal Pty Ltd (No 2) [2015] FCA 1374.
[8] Ibid [33].
[9] [2023] QIRC 121 ('Mackenzie').
[10] Ibid [52].
[11] [2022] QIRC 350 ('Winter').
[12] Ibid [10].
[13] Ibid [22]-[26].
[14] [2022] QIRC 226 ('Gundrum').
[15] Ibid [38].
[16] [2023] QIRC 058 ('Mocnik').
[17] Ibid [111].
[18] [2023] QIRC 262 ('Tilley').
[19] Ibid [1]-[12].
[20] Ibid [30]-[33].
[21] Ibid [33].
[22] [2024] QIRC 287.
[23] Ibid [42]-[47], [79]-[82].
[24] (1985) 159 CLR 550 ('Kioa').
[25] Ibid 584.
[26] citing Colebourne v State of Queensland (Queensland Police Service) [2022] QIRC 17, [39]-[40]; Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252.
[27] citing 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.
[28] citing Tilley (n 20) [33].
[29] citing Bakhash v State of Queensland (Department of Education) [2022] QIRC 352, [27] ('Bakhash').
[30] See for example, Radanovic v State of Queensland (Department of Education) [2024] QIRC 225.