Wearne v State of Queensland (Department of Education)
[2025] QIRC 87
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- Wearne v State of Queensland (Department of Education)[2025] QIRC 87
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Wearne v State of Queensland (Department of Education)[2025] QIRC 87
Wearne v State of Queensland (Department of Education)[2025] QIRC 87
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Wearne v State of Queensland (Department of Education) [2025] QIRC 087 |
PARTIES: | Wearne, Alexander Appellant v State of Queensland (Department of Education) Respondent |
CASE NO: | PSA/2022/772 |
PROCEEDING: | Public Sector Appeal – Disciplinary Decision |
DELIVERED ON: | 24 March 2025 |
MEMBER: | Pratt IC |
HEARD AT: | On the papers |
ORDERS: |
|
CATCHWORDS: | PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – PUBLIC SERVICE APPEAL – where appellant appeals decision to reprimand and reduce pay for 18 weeks as discipline for failing to comply with a direction to be vaccinated for COVID-19 – consideration of whether to exercise the discretion to not hear the matter pursuant to s 562A(3) of the Industrial Relations Act 2016 (Qld) – consideration of "conduct" in respect of omissions, inaction, failure/refusal to act as directed – held that all of the arguments raised in appeal are either beyond the scope of appeal, misconceived or devoid of prospects – held that discretion within s 562A(3) of the Industrial Relations Act 2016 (Qld) is enlivened – held appropriate case to exercise the discretion to not hear appeal because appeal is misconceived, lacks substance and for other compelling reasons. |
LEGISLATION: | Industrial Relations Act 2016 (Qld) s 562A(3) Public Service Act 2008 (Qld) s 194 Public Sector Act 2022 (Qld) s 91, s 130, s 131, s 133, s 134, s 324 Department of Education Employment Direction 1/21 – COVID-19 Vaccinations Department of Education Employment Direction 1/22 – COVID-19 Vaccinations |
CASES: | Augustine v State of Queensland (Department of Education) [2022] QIRC 184 Johnston v State of Queensland (Department of Education) [2024] QIRC 11 Johnston & Ors v Carroll (Commissioner of the Queensland Police Service) & Anor; Witthahn & Ors v Wakefield (Chief Executive of Hospital and Health Services and Director General of Queensland Health); Sutton & Ors v Carroll (Commissioner of the Queensland Police Service) [2024] QSC 2 Kemp v State of Queensland (Department of Education) [2022] QIRC 164 Mocnik & Ors v State of Queensland (Queensland Health) [2023] QIRC 58 Nuske v State of Queensland (Department of Education) [2023] QIRC 199 Patterson v State of Queensland (Queensland Corrective Services) (No.2) [2024] QIRC 287 Philp v State of Queensland (Department of Education) [2023] QIRC 219 Radanovic v State of Queensland (Department of Education) [2024] QIRC 225 Regan v State of Queensland (Department of Education) [2022] QIRC 335 Rossiter v State of Queensland (Department of Education) [2024] QIRC 25 Stacey v State of Queensland (Department of Education) [2024] QIRC 220 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]Mr Alexander Wearne ('Appellant') filed an appeal on 9 September 2022 regarding a decision of his employer, the State of Queensland (Department of Education) ('Respondent'), made on 22 August 2024 to discipline the Appellant in the form of an 18 week long reduction in pay and a reprimand ('Decision').
- [2]The Decision imposed discipline on the Appellant as a result of the Appellant's failure to comply with the Department of Education Employment Direction 1/21 – COVID-19 Vaccinations and its successor, the Department of Education Employment Direction 1/22 – COVID-19 Vaccinations ('Directions'). The Directions required the Appellant to receive, and provide evidence of receiving, two doses of a COVID-19 vaccine by stipulated dates.
- [3]It appears that after having laid dormant while many other matters arguing similar grounds of appeal ran their course, this matter was called on for mention by his Honour, O'Connor VP, on 17 July 2024. The purpose of that mention seems to be so that the Queensland Industrial Relations Commission ('Commission') could establish if the Appellant still wanted to proceed in light of that large body of precedent. The Appellant expressed a desire to proceed. Orders were issued that day by the Commission directing the parties to make submissions as to whether the Commission should decide not to hear the appeal pursuant to s 562A(3) of the Industrial Relations Act 2016 (Qld) ('IR Act').
Primary grounds of appeal
- [4]The Appellant's submissions attached to the Form 89 Appeal Notice are extensive. There are 25 pages of submissions and 25 pages of annexures. I have reviewed all of that material and make mention in these reasons of only those aspects of the submissions and attachments that are relevant to setting out my reasons. The grounds of appeal in the Form 89 Appeal Notice can be broadly summarised as challenging the Respondent's decisions to:
- a.find the Appellant had failed to comply with the Directions without reasonable excuse;[1]
- b.suspend the Appellant with pay;[2]
- c.suspend the Appellant without pay;[3] and
- d.discipline the Appellant.[4]
- [5]All but the last of the challenges outlined above are challenges to different decisions that are not the Decision and which predate the Decision.
Issues
- [6]Two main issues arise for determination. I must first determine whether jurisdiction exists to consider those challenges made in the appeal to the earlier decisions which are not the Decision. I must then determine whether the Appeal should be the subject of an exercise of the discretion not to hear a matter under s 562A(3) of the IR Act.
Relevant law
- [7]This Commission is a creature of statute whose jurisdiction is derived solely from legislation. Section 134 of the Public Sector Act 2022 (Qld) ('PS Act') and chapter 11 of the IR Act have the combined effect of conferring jurisdiction on the Commission to hear appeals brought under chapter 3, part 10 of the PS Act.
- [8]The Appellant filed this appeal when the predecessor to the PS Act, the Public Service Act 2008 (Qld) ('repealed Act'), was in force. The Appellant brought the appeal under s 194 of the repealed Act. Section 324 of the PS Act brings appeals made under s 194 of the repealed Act within the purview of the PS Act by requiring that such appeals be heard and decided under chapter 3, part 10 of the PS Act.
- [9]The operative effect of ss 134 and 324 of the PS Act, and of chapter 11 of the IR Act, is that the Commission can hear appeals like the present one that were brought under the repealed Act. It does so in accordance with chapter 3, part 10 of the PS Act.
- [10]Chapter 3, part 10 of the PS Act contains three important sections for present purposes. Section 130 entitles a person to appeal a decision if an appeal may be made against the decision under s 131 of the PS Act and if the person is entitled to appeal against the decision under s 133 of the PS Act.
- [11]However, s 564 of the IR Act imposes a 21-day time limit for filing appeals to the Commission against a decision. That section and that time limit is contained within chapter 11 of that Act and so applies to this appeal by the virtue of s 134 of the PS Act. An appellant may make an application under s 564(2) of the IR Act to extend that time limit to allow the appeal to be started within a longer period. That is a formal application process, hearing from all parties and considering the elements of the relevant legal test before a decision is issued by the Commission on the application. No such applications were made by the Appellant in respect of any of the earlier decisions mentioned in subparagraphs [4]a., [4]b. and [4]c. above.
- [12]Section 562A of the IR Act confers on the Commission the discretion to decide to not hear a public service appeal if the Commission reasonably believes, after asking the appellant to establish by oral or written submissions that the appellant has an arguable case for the appeal, that the appeal is frivolous or vexatious, is misconceived or lacks substance, or should not be heard for another compelling reason. Dwyer IC's decisions in Tilley v State of Queensland (Queensland Health) ('Tilley') and Radanovic v State of Queensland (Department of Education) ('Radanovic') are recent examples of the exercise of this discretion.[5] In those matters, Dwyer IC dealt with appeals of decisions concerning COVID-19 vaccination directions where the appellants ran arguments that had been rejected by the Commission in previous cases.[6] Dwyer IC reasoned in each case that it would be wasteful to hear those futile arguments and subsequently found that to be a compelling reason not to hear the matters.[7]
Relevant facts
- [13]The Appellant is a teacher at Eagleby State School in the special education program. On the Respondent's account, he failed to comply with the Directions without a reasonable excuse. The Appellant believes otherwise. Nonetheless, the Respondent subsequently suspended the Appellant's employment, first on full pay and then, from 27 January 2022, without pay.
- [14]The Respondent commenced a disciplinary process against the Appellant on 10 June 2022 by delivering a letter to the Appellant asking that he respond to the allegation that he contravened the Directions without reasonable excuse. The Appellant responded to the allegation. The Respondent considered the Appellant's response but advised on 1 August 2022 that the allegation against him was substantiated. The Respondent then invited the Appellant to show cause as to why he should not be reprimanded and why his pay should not be reduced from pay grade B03–02 to B03–01 for 20 weeks.
- [15]The Appellant responded to that show cause notice, arguing against the imposition of the proposed discipline. However, on 22 August 2022, the Respondent issued the Decision by way of Ms Anne Crowley, Assistant Director-General, Human Resources, Department of Education.
Can the challenges to the earlier decisions be heard?
- [16]The Decision is the final link in a chain of decisions made during the abovementioned process. The Appellant seeks that the Commission consider each decision in that process. Those decisions have been outlined above.[8]
- [17]Those decisions all deal with the same overarching issue of the Appellant refusing to receive vaccinations. I understand how the Appellant has arrived at the conclusion that the Commission should consider those earlier decisions on the basis that those earlier decisions are factually related to, and part of the process leading to, the Decision.
- [18]However, I recently canvassed several of the authorities on whether a person can appeal an earlier decision as part of an appeal of a later decision in Patterson v State of Queensland (Queensland Corrective Services) (No.2) ('Patterson').[9] I found there to be some tension in these authorities but ultimately concluded that the weight of authority was that the earlier decisions were separately appealable decisions despite having significant factual overlap and being part of the same disciplinary process.[10] Therefore, I have no difficulty in concluding that in this matter, each of the earlier decisions are separate decisions to the Decision requiring their own separate appeals.
- [19]The Appellant did not appeal any of those earlier decisions, let alone do so within the time limit prescribed by s 564 of the IR Act. He has not made an application for extra time either. Consequently, the right to appeal has lapsed in each case and no jurisdiction exists to hear those appeals. I conclude, therefore, that these challenges cannot be considered as part of this appeal.
The parties' arguments and consideration – s 562A IR Act
- [20]I must now consider whether I should exercise the discretion under s 562A of the IR Act to not hear this appeal.
- [21]The Appellant advances the argument that he could not be found to have engaged in misconduct because his failure to be vaccinated was an omission, not 'conduct', and therefore could not constitute 'misconduct'. The underpinning of this argument is that, in the Appellant's submission, the word 'misconduct' is a form of conduct, which is limited only to positive acts. Thus, so the argument goes, the word 'misconduct' excludes any kind of omission or refusal to act.
- [22]This argument is misconceived for three reasons. First, the argument is actually one that seeks to appeal the earlier finding that the Appellant failed to comply with the Direction without a reasonable excuse. It does so by challenging the basis of the finding that the Appellant conducted himself in such a way as to constitute failing to comply with the Directions without a reasonable excuse. The decision finding that the Appellant failed to comply with the Directions without a reasonable excuse was never appealed by the Appellant. Any challenge to it is out of time, and therefore no jurisdiction to hear it accrues. The Appellant has made no application for an extension of time either. As noted above, the Appellant cannot appeal that earlier decision as part of this appeal, which is confined to whether the temporary reduction in pay and reprimand were fair and reasonable.
- [23]Second, even if that earlier finding could be appealed, the Appellant's definition of 'conduct' must be rejected. The Shorter Oxford English Dictionary defines 'conduct' as manner of conducting oneself; behaviour, especially in a moral aspect.[11] In my opinion, it is obvious that the Appellant clearly conducted himself, or behaved, in such a way as to wilfully refuse to receive the vaccinations. I conclude therefore that the Appellant was engaging in 'conduct' on any reasonable interpretation of the word.
- [24]Third, an employer like the Respondent may, under s 91(2) of the PS Act, find that there is a disciplinary ground for either acts or omissions, or both. Furthermore, misconduct is only one of several grounds outlined in s 91(1) by which an employer like the Respondent could discipline the Appellant. One of those grounds, enumerated in s 91(1)(d), is that the employee contravened a direction given to them without a reasonable excuse. That could not be more on point. So this argument about misconduct is misconceived.
- [25]The Appellant advances other misconceived arguments. First, the Appellant argues that other jurisdictions and private employers took different approaches to vaccination policies. What other jurisdictions did, or even what other departments in this jurisdiction did, in response to the COVID-19 pandemic has no bearing on these proceedings. And in any case, that argument does not address whether the discipline was fair and reasonable. It only goes to whether the Directions were fair and reasonable, which as I have noted above, was the subject of an earlier decision that the Appellant has not brought an appeal against and cannot be considered as part of this appeal.
- [26]Second, the Appellant argues that he was ready, willing and able to work in his teaching role despite his unvaccinated status. He further argues that special rules pertaining to critical workforce shortages should have been resorted to instead of finding that the Appellant failed to comply with the Directions without a reasonable excuse. The Appellant also argues that the Respondent accommodated others who were in a comparable situation to his own, but did not afford the Appellant the same opportunity. The fatal flaw in this second stream of arguments is that they are all challenges to the earlier decision finding that the Appellant failed to comply with the Directions without a reasonable excuse. Again, those challenges cannot be part of this appeal.
- [27]The Appellant also argues that he should have been exempted from following the Directions. In support of that argument, in his written submissions, the Appellant attaches the report from a test carried out on 4 July 2024. The report shows that the Appellant had acquired antibodies to COVID-19. The Appellant argues that this proves that he did in fact contract COVID-19, possibly during the relevant period covered by the Direction. The Appellant therefore claims that it is possible that he had a medical contraindication that the Respondent did not account for when making its original decision that the Appellant had failed to comply with the Directions without a reasonable excuse.
- [28]That argument must be rejected because the medical evidence is ambiguous as to when exactly the Appellant acquired an immunity to COVID-19. Furthermore, the test was carried out in 2024, almost two years after the Decision was delivered. That evidence did not exist in 2022. It was up to the Appellant to put such material before the Respondent at the relevant time. He did not do so. It cannot be reasonably argued that the Respondent should have known about something that did not exist at the relevant time. Finally, the argument is misconceived because it does not challenge the Decision, but rather, challenges the earlier decision finding that the Appellant failed to comply with the Directions without a reasonable excuse.
- [29]The Appellant also devotes a great deal of his submissions to arguing the case for why the Directions were unreasonable or unlawful, or both. The Appellant relies on the case of Johnston & Ors v Carroll (Commissioner of the Queensland Police Service) & Anor; Witthahn & Ors v Wakefield (Chief Executive of Hospital and Health Services and Director General of Queensland Health); Sutton & Ors v Carroll (Commissioner of the Queensland Police Service),[12] as well as several pieces of medical literature, to argue that his human rights were unreasonably compromised by virtue of the Directions, thereby making the Directions unlawful. The Appellant argues that he could have worked but for the fact that he was not vaccinated, if only the Respondent had been more willing to find a way that he could do so. The Appellant argues that there was political bias involved and points to public messaging about vaccine mandates in support of that argument. The Appellant suggests hypotheticals, such as if the Appellant had been on parental leave, or perhaps long service leave, he would not have been in the situation he was and would therefore have been spared the requirement within the Directions to be vaccinated in order to work. It is difficult to follow how such hypotheticals are relevant to this appeal. However, it appears that the Appellant posits those hypothetical cases as a demonstration of unfairness between himself and those hypothetical comparators.
- [30]One of the more obvious fatal flaws with all of those submissions is that they seek to challenge the earlier decisions suspending the Appellant and finding that the Appellant contravened the Directions without a reasonable excuse. The Appellant failed to appeal those earlier decisions at all, let alone within the statutory time limit for doing so. Hence, the Commission lacks jurisdiction to hear any appeal against those decisions.
- [31]Another fatal flaw with these arguments is that they are predicated on the notion that the Directions were not reasonable or lawful. His Honour, O'Connor VP, held in Mocnik & Ors v State of Queensland (Queensland Health) that the requirement within the Directions was lawful and reasonable.[13] Consequently, any arguments predicated on the Directions not being reasonable or lawful, such as these arguments, are doomed to fail.
- [32]The Appellant further argues that he was not afforded procedural fairness because of the similarities between the disciplinary process he underwent and the disciplinary process other people in similar situations experienced. His Honour, O'Connor VP, in Nuske v State of Queensland (Department of Education) dealt with the procedural fairness of the process that was applied to the Appellant.[14] His Honour traversed a great deal of evidence about that disciplinary process and concluded that the process was fair and reasonable.[15] So even if time were extended to allow consideration of an appeal of the finding that the Appellant contravened the Directions without reasonable excuse, the fact that the Commission has previously rejected the argument that the process was procedurally unfair means this argument is doomed to fail.
- [33]The Appellant also argues that the decision to substantiate findings that he had not followed the Directions without a reasonable excuse was not fair and reasonable because he was willing and able to attend work despite being unvaccinated. This argument is misconceived because it does not challenge the Decision. It actually challenges the earlier decision to substantiate the allegation. Yet even if the argument were not misconceived, it would still be doomed to fail. The argument was rejected in Winter v State of Queensland (Department of Education)[16] by his Honour, Merrell DP. His Honour held that being 'able' to work did not equate to being 'available for work', which is what the Directions required, and not receiving the vaccine meant the appellant was not available for work. Like the appellant in Winter, the Appellant chose not to be vaccinated and so made himself unavailable for work. Consequently, the fact the Appellant believes he was able to work is irrelevant.
- [34]The arguments about suspension with and without pay are also plainly outside the scope of this appeal and so are misconceived. But even if they could be heard, they are without prospects in my opinion. That is because in Rossiter v State of Queensland (Department of Education),[17] his Honour, O'Connor VP, held that the decision to suspend the appellant teacher without pay for not complying with the Directions was fair and reasonable.[18]Accordingly, I find this to be a compelling reason to not hear the other arguments. Even if these potential late appeals were the subject of a successful application to extend time, I am of the view that these arguments would fail. The arguments are misconceived or are devoid of prospects because the arguments have been rejected by the Commission in the past.
- [35]The Appellant's arguments that do actually address the Decision can be summarised as claiming that the punishment was disproportionate to the nature of wrongdoing and that the reprimand has had the effect of "catastrophically disposing of [his] career" because the Appellant will have to declare on all future job applications that he has been the subject of discipline. The Appellant cites many cases in support of his contention that the discipline was disproportionate to the wrongdoing, including Kemp v State of Queensland (Department of Education),[19] Augustine v State of Queensland (Department of Education),[20] Johnston v State of Queensland (Department of Education),[21] Philp v State of Queensland (Department of Education),[22] and Regan v State of Queensland (Department of Education).[23] I surmise that the Appellant's point is that the discipline imposed on him was proportionately harsher than the discipline imposed on the employees in those cases, thereby making the discipline not fair and reasonable.
- [36]Three of those cases involved matters where the Commission upheld a dismissal of a teacher for maintaining an inappropriate relationship with a student,[24] the dismissal of a teacher for physical violence against a student,[25] and the proposed dismissal of a teacher for a physical altercation with a student.[26] The other two cases involved appeals where the question was whether, following the suspension of the appellant's registrations to teach, the decision to suspend without pay, rather than to suspend at all, was fair and reasonable.[27] The discipline in those cases was severe, but so was the relevant wrongdoing. Here, the Appellant's wrongdoing is serious but is not as severe as the cited examples. Yet, the Appellant's discipline – a temporary reduction in remuneration and a reprimand – is also not as severe as the discipline in the cited cases.
- [37]I therefore see nothing in these cited examples that would persuade me to adopt the view that the discipline imposed on the Appellant could be reasonably argued as disproportionate. I am influenced in coming to that conclusion by virtue of the fact that the discipline in this case (reprimand and an 18 week reduction in pay) has been the subject of failed appeals to the Commission. In Radanovic, for example, Dwyer IC considered an appeal of the same disciplinary outcome and, referring to other decisions pressing the same arguments such as in Stacey v State of Queensland (Department of Education)[28] and Tilley, relevantly said:
- … To the extent Mr Stacey’s employment is rendered more tenuous by virtue of the reprimand now on his record, that is a small price to pay for an employee who has demonstrated no insight and no remorse for wilfully refusing to comply with a lawful and reasonable direction.
- [41]Mr Radanovic would do well to reflect on these observations and on the multitude of authorities that comprehensively contradict his flawed narrative of unfairness. He has the good fortune to enjoy continued employment with the Department in circumstances where there was compelling justification for dismissal.
- [42]There is nothing unfair or unreasonable about his penalty and, for that compelling reason, I decline to hear his appeal.
- [38]The Appellant's arguments have thus been rejected. The Appellant raises nothing new in this appeal. The arguments he advances are inarguable and are therefore entirely devoid of prospects in my opinion.
Conclusions
- [39]The vast majority of the appeal is comprised of challenges to decisions that cannot be considered. That is because those decisions have not been appealed in time and no jurisdiction exists. Even if time were extended, I would decide not to hear those arguments under s 562A(3) of the IR Act because many of the arguments are misconceived or have previously been rejected. The challenges that do directly address the Decision are devoid of prospects because they have previously been rejected by the Commission. For those reasons, I conclude that the appeal should not be heard.
Orders
- 1.The appeal is not to be heard.
- 2.The Decision is confirmed.
Footnotes
[1] Paragraphs 1 A. to Y. viii of the appeal particulars attachment to the notice of appeal.
[2] Paragraphs 3 A. to J. of the appeal particulars attachment to the notice of appeal.
[3] Paragraphs 4 A. to F. of the appeal particulars attachment to the notice of appeal..
[4] Paragraphs 2 A. to M. of the appeal particulars attachment to the notice of appeal
[5] Tilley v State of Queensland (Queensland Health) [2023] QIRC 262 ('Tilley'); Radanovic v State of Queensland (Department of Education [2024] QIRC 225 ('Radanovic').
[6] Tilley (n 5) [1]-[12], [30]-[33]; Radanovic (n 5) [1]-[10], [25]-[42].
[7] Tilley (n 5) [33]; Radanovic (n 5) [39].
[8] See paragraph [4].
[9] [2024] QIRC 287 ('Patterson').
[10] Ibid [42]-[47], [79]-[82].
[11] Shorter Oxford English Dictionary, 5th Ed (Oxford University Press, New York 2003).
[12] [2024] QSC 2.
[13] Mocnik & Others v State of Queensland (Queensland Health) [2023] QIRC 58, [19] ('Mocnik').
[14] Nuske v State of Queensland (Department of Education) [2023] QIRC 199, [5] ('Nuske').
[15] Ibid [85], [87].
[16] [2022] QIRC 350 ('Winter')
[17] [2024] QIRC 25 ('Rossiter').
[18] Ibid [33].
[19] [2022] QIRC 164 ('Kemp').
[20] [2022] QIRC 184 ('Augustine').
[21] [2024] QIRC 11 ('Johnston')
[22] [2023] QIRC 219 ('Philp')
[23] [2022] QIRC 335 ('Regan').
[24] Kemp (n 19) [158], [173]-[174]
[25] Augustine (n 20) [121]-[137].
[26] Regan (n 23) [85]-[87].
[27] Johnston (n 21) [116]-[119]; Philp (n 22) [153]-[157].
[28] [2024] QIRC 220 ('Stacey').