Carr v State of Queensland

Public Service Act 2008 (Qld) s 137

COVID-19 Vaccination Requirements for Workers in a high-risk setting Direction

COVID-19 Vaccination Requirements for Workers in a high-risk setting Direction (No. 2)

Department of Education - Employment Direction 1/21 - COVID-19 Vaccinations

Goodall v State of Queensland (Unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018)

Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245

Winter v State of Queensland (Department of Education) [2022] QIRC 350

Elliott v State of Queensland (Queensland Health) [2022] QIRC 332

Luna v State of Queensland (Department of Education) [2022] QIRC 419

• [1] Mr Joshua Carr ('Mr Carr') is permanently employed by the Department of Education ('the department') as a permanent Senior Teacher at Maryborough State High School.

• [2] On 11 December 2021, the Chief Health Officer issued the Covid-19 Vaccination Requirements for Workers in a high-risk setting Direction. The department subsequently issued the Employment Direction 1/22 - COVID 19 Vaccination ('the direction'). Mr Carr was subject to the direction and did not comply with that direction and was subsequently suspended from his duties without pay.

• [3] By letter dated 10 January 2022, Executive Director Ms Genevieve Gillies-Day wrote to Mr Carr and advised him he was not lawfully able to attend the workplace due to failing to provide evidence that he had been vaccinated against COVID-19, and he was subsequently suspended on normal renumeration and invited to show cause as to why he should not be suspended without renumeration. After considering his response, Mr Carr was subsequently suspended without renumeration from 27 January 2022.

• [4] On 24 June 2022, Mr Carr received correspondence from the Department cancelling his suspension, effective from 1.00am on 30 June 2022. In the correspondence, Mr David Miller, Executive Director states:

If you have been suspended without remuneration (pay) at any stage throughout this process, I confirm that you will not be repaid for the period you were suspended without pay. This is in accordance with Clause 6.10 of the Public Service Commission's Suspension Directive 16/20 on the basis that you were not available to work during the period of suspension, as you were not compliant with the Direction, and for the reasons outlined in the letter advising you of the decision to suspend you without pay.

If you believe that the decision is unfair and unreasonable, you may lodge an appeal under the appeal provisions of the Public Service Act 2008. The Queensland Industrial Relations Commission Industrial Registry will be able to provide further information about public service appeal procedures (www.qirc.qld.gov.au; Tel: 1300 592 987).

• [5] By appeal notice filed on 15 July 2022, Mr Carr appeals the decision of Mr Miller that he will not be repaid for the period he was suspended without renumeration, from 27 January 2022 until 30 June 2022 ('the decision').

• [6] Chapter 11 of the Industrial Relations Act 2016 (Qld) ('the IR Act') provides the Queensland Industrial Relations Commission with jurisdiction to deal with appeals under the Public Service Act 2008 (Qld).

• [7] The IR Act provides that appeals are dealt with by way of review. That is to say, it is not a rehearing of the matter in the form of a hearing de novo.[1] The word 'review' is not defined and accordingly it must take its meaning from the context in which it appears.[2] The task of the Commission is to review the decision of Mr Miller of 24 June 2022 to determine if it was fair and reasonable.[3]

• [8] Chapter 11 of the IR Act limits the orders the Commission can make. The IR Act provides that the commission, having heard an appeal, may make one of the following orders:[4]

(c) 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

• [9] Suspension Directive 16/20 ('the directive') relevantly addresses suspension without renumeration at cause 6:

6.1 Section 137(4) of the PS Act provides that the chief executive may decide that normal remuneration is not appropriate during a period of suspension where the employee is a public service employee liable to discipline.

6.6 An employee must be reimbursed for remuneration the employee does not receive during the employee's suspension if a decision on discipline has been made that does not result in termination of their employment.

6.10 If the employee was not available to work during the period of suspension for reasons other than being suspended (for example, due to being detained in a corrective services facility), then the amount repaid to the employee must be less the total number of days that the employee was not available to work during the period of suspension.

• [10] Directions were issued on 19 July 2022 inviting submissions from Mr Carr and the department.

• [11] On 9 September 2022, Mr Carr requested to file further submissions in response. That request was granted. On 1 October 2022, the department sought leave to file further submissions in reply. That request was also granted.

• [12] Mr Carr's submissions begin with him questioning the authority of the decision made by Mr Hastie-Burroughs, contending that as the delegated authority had not been given, the decision to suspend Mr Carr without renumeration was done in breach of the departmental policies and was thus unlawful.

• [13] Mr Carr relies on clause 6.6 of the directive as outlined above and contends that as he is not being terminated, he should be reimbursed all unpaid renumeration for the period of his suspension.

• [14] Mr Carr contends that the department have not followed the principles of natural justice as required in the PS Act and the directive. Mr Carr submits that the requested information the Department relied on which was used to determine that he would be suspended without pay. Mr Carr says this evidence was never provided to him.

• [15] Mr Carr submits that he was available to work during the suspension and contends that the vaccination directive did not include a clause about critical workforce shortages which would have enabled staff like him to fill the gaps.

• [16] The last paragraph of Mr Carr's submissions request that his details be de-identified. No formal application was filed in respect of this.

• [17] The department's submissions are comprised of two arguments:

1. The appeal should be dismissed for want of jurisdiction; and

1. If the jurisdictional objection is not accepted, the decision was fair and reasonable.

• [18] The department's jurisdictional objection arises out of the contention that Mr Carr has not exhausted avenues required to lodge a fair treatment appeal and has already exercised an opportunity to appeal the suspension without renumeration decision. Mr Carr's application for a longer period to commence that appeal was refused. For these reasons the department raises the jurisdictional objection.

• [19] The department alternatively submits that the decision was fair and reasonable, because it was open to the department to conclude that receiving normal renumeration during the suspension was not appropriate. At the time Mr Carr was, in the reasonable belief of the Respondent, liable to discipline for failing to follow a lawful and reasonable direction to comply with the vaccination direction.

• [20] Mr Carr's further submissions contend that the Department's submissions in relation to the requirement for vaccination are 'not what this current appeal is about'.[5] Mr Carr contends the appeal is in response to the decision not to reimburse his unpaid suspension time, even though he was available and ready to work.

• [21] Mr Carr submits that the Department did not consider his response letter on behalf of the Red Union, which was sent to the Department on 16 January 2022. Mr Carr submits that this demonstrates that natural justice was not followed in his matter.

• [22] In responding to the jurisdictional objection of the department, Mr Carr submits the decision to not follow the directive is not administrative and thus falls within the Commission's jurisdiction. Mr Carr further questions why the correspondence of the department outlines the Commission's appeal processes if they are not the correct processes.

• [23] Mr Carr submits that the appeal is not about whether the vaccination direction was lawful and reasonable. He also submits that it has become evident through 'media and other information that has come to light' that the department never intended of terminating those who were suspended pursuant to the vaccination direction.[6]

• [24] Mr Carr raises the suspension process of the Queensland Ambulance Service in his submissions:[7]

I would also like to note here that Qld Ambulance Officers / Paramedics were affected by a similar direction. They also work/worked for a branch of the Qld Government and were also subject to Suspension Directive 16/20. They were suspended on full remuneration for a period of over 5 months. The Dept claiming that they were following Suspension Directive 16/20 regarding use of public money and public interest in halting my remuneration in the first place shows a double standard. I should add that the Qld Ambulance Officers who were still not compliant were then suspended without remuneration (after 5+ months on full remuneration) and have now been terminated.

• [25] Mr Carr also makes the following submission in relation to his work availability:[8]

The claims that I was 'unavailable to work' in Items 24 and 26 flies in the face of the instruction to make myself available (original documents 1 and 3) and the fact that the Dept, as supplied in Respondent attachment 1 (Employment Direction 1/21) section 9 - "Unvaccinated Workers", had the power to call upon myself and others in special circumstances. These circumstances, in section 9 are defined as "a sustained workforce shortage in a high-risk setting that the responsible person for the high-risk setting considers may directly and significantly compromise ... the delivery of essential services to users of the high-risk setting".

I have included information from my workplace (additional documents 8, 9, 10 and 11) that demonstrates that there were periods of Critical Workforce Shortages that significantly compromised the "delivery of essential services to users of the high-risk setting". These are only a few examples of the many days that there were workforce shortages. I know of staff who, though they had no obligation to do so, gave up some / all their contractually obliged non-contact time to look after classes during these times. The letter 'M' next to any of the classes signifies that they were merged with another class. There are some classes that were merged with completely unrelated subject areas with staff unable to help those students. I have verbally been informed, by both staff and students, of senior (Yr 11 and 12) classes that were placed in the library without a supervising teacher. The Dept never contacted me, yet directed me to be contactable, and chose not to allow me to work under the special provisions in these circumstances, even though I was ready, willing and able to work.

• [26] Mr Carr submits that he has not provided or given the department permission to access his medical information, and requests he is not referred to as 'unvaccinated', rather as 'undetermined status' in relation to his vaccination status.

• [27] Mr Carr closes his submissions buy noting the department has not addressed his submissions in relation to natural justice.

• [28] The department refutes the suggestion of Mr Carr that natural justice was not applied. The Department notes that Mr Car was afforded the opportunity to respond as to why he should not be suspended without renumeration.

• [29] The department clarifies that Mr Carr was not able to lawfully enter the workplace due to his vaccination status and as such is not entitled to renumeration or reimbursement. The department thus submits the directive was complied with, specifically clause 6.10.

• [30] I accept that the appeal relates to the decision not to reimburse Mr Carr for the period he was suspended. This was a decision contained within the notification of suspension cancellation. I am satisfied that there is jurisdiction for the Commission to hear an appeal of the decision not to reimburse Mr Carr, but only that decision.

• [31] I note that the appeal was filed on 15 July 2022 and that the submissions predominately pre-date the release on the decision of Deputy President Merrell in the matter of Winter v State of Queensland (Department of Education) ('Winter') which was released on 9 September 2022.[9] Consequently, neither party has addressed those findings.

• [32] The matter is directly analogous to that and as such I adopt the below comments of Deputy President Merrell:

[21] .... On the facts before the Department, as presented to me by both parties, the only reason that Ms Winter was unable to attend work as from 15 February 2022, for a reason other than her suspension, was due to the operation of the Second CHO Direction which, in turn, applied to Ms Winter because of her unvaccinated state. In her appeal notice, Ms Winter states that she has medical reasons for not being vaccinated, but has led no evidence that she has appealed a decision not to grant her an exemption.

[22] Thirdly, the Departmental Direction cites the First CHO Direction as being the legal instrument prohibiting unvaccinated workers attending Departmental high risk settings. The Departmental Direction does not purport to be the source of power prohibiting unvaccinated workers attending Departmental high risk settings.

[23] On the other hand, the Departmental Direction was a direction, separate to the First and Second CHO Directions, given to certain public service employees employed in the Department by the Chief Executive of the Department. The Departmental Direction was a lawful direction that public service employees employed in the Department, who fell within the scope of the First CHO Direction, had to be vaccinated as provided for in the Departmental Direction. Pursuant to s 187(1)(d) of the PS Act, a public service employee may be liable for discipline if the employee contravenes, without reasonable excuse, such a direction. Pursuant to s 137 of the PS Act, if the Chief Executive of the Department reasonably believes a public service employee is liable to discipline under a disciplinary law, then the employee may be suspended from duty, either with or without remuneration.

[24] The First and Second CHO Directions were lawfully given by the Chief Health Officer pursuant to s 362B of the Public Health Act 2005. That section is contained in ch 8 ('Public Health Emergencies'), pt 7A ('Particular powers for COVID-19 emergency') of that Act. Section 362B provides:

(1) This section applies if the chief health officer reasonably believes it is necessary to give a direction under this section (a public health direction) to assist in containing, or to respond to, the spread of COVID-19 within the community.

(2) The chief health officer may, by notice published on the department's website or in the gazette, give any of the following public health directions-

(a) a direction restricting the movement of persons;

(b) a direction requiring persons to stay at or in a stated place;

(c) a direction requiring persons not to enter or stay at or in a stated place;

(d) a direction restricting contact between persons;

(e) any other direction the chief health officer considers necessary to protect public health.

(a) the period for which the direction applies; and

(b) that a person to whom the direction applies commits an offence if the person fails, without reasonable excuse, to comply with the direction.

[25] Ms Winter was suspended without remuneration by virtue of a decision of the delegate of the Chief Executive of the Department which was made pursuant to s 137(4) of the PS Act. That decision was made, in part, due to the nature of the discipline to which the delegate reasonably believed Ms Winter was liable under a disciplinary law. That arose because Ms Winter failed to comply with the Departmental Direction to be vaccinated. However, the only reason Ms Winter was not available to work at the school during the period of her suspension, other than the fact of her suspension, was the application of the Second CHO Direction. The Second CHO Direction applied to Ms Winter due to her unvaccinated state and because of the nature of her workplace.

[26] If, at a point in time, Ms Winter became vaccinated during the period of her suspension (and the suspension remained on foot) such that she was compliant with the Second CHO Direction and thereby not prevented from working at the school, then cl 6.10 of the Suspension Directive would not apply to her from that point in time because (in the absence of any other reason) the only reason she would have been unavailable for work was her suspension.

• [33] The departmental directive suspending Mr Carr's employment did not purport to be the source of power prohibiting him from attending work during his period of suspension. The source of the power was the Chief Health Officer's directive, which applied to Mr Carr and prevented his attendance at any departmental site while he was in breach of the requirement to be vaccinated.[10]

• [34] Mr Carr's submission in relation to his willingness and ability to work is also redundant. Despite his willingness and perceived availability to work, Mr Carr did not confirm he was vaccinated, nor did he have an exemption for being unvaccinated. In the circumstances, he was not available for work for a reason other than being suspended. I adopt Deputy President Merrell's reasoning as addressed in Winter:

[33] Thirdly, even though Ms Winter states that she made herself available for work at the school during the period of her suspension without remuneration, the undeniable fact is that she was not available for work at the school during the period of her suspension for a reason other than her being suspended. That was the result of the application of the Second CHO Direction. Ms Winter, by her own declaration to hold herself out as being available to work at the school during the period of her suspension without remuneration, could not alter the application and effect of the Second CHO Direction.

• [35] Mr Carr's response which he contends was not considered by the department before suspending him without renumeration traverses a number of arguments including consultation and human rights which have been previously run before this Commission. I adopt the observations I made in relation to such arguments in Elliott v State of Queensland (Queensland Health) ('Elliott'):[11]

[29] The commission has now dealt with a great many appeals of this nature. Consequently, a reliable body of jurisprudence has been developed dealing with increasingly common themes in the arguments advanced by appellants like Ms Elliott, who have not complied with a vaccine mandate applicable in their respective departments of employment.

[30] Notwithstanding that these decisions are available publicly on the Queensland Courts website, appellants continue to file these appeals challenging the validity of directions for them to be vaccinated and relying on arguments such as 'vaccines are not safe' or 'mandates are coercion' or 'human rights infringements' or 'risk assessments were not provided' or 'consultation did not occur' et cetera.

• [36] Apart from the obvious futility of the arguments about the suspension infringing his human rights etc, these matters are not within my jurisdiction, and I do not intend to deal with them. The nominated decision that is the subject of this appeal is the decision dated 24 June 2022. While the purpose and function of that correspondence was to notify Mr Carr of the cancellation of his suspension, I consider that it contains a relevant decision with respect to the question of reimbursement under the Directive. None of the other matters raised by Mr Carr arise out of the decision under review and I am therefore not prepared to consider them. For completeness, if I had considered his submissions regarding consultation and human rights, I would have treated them in a similar fashion to those arguments in Elliott.

• [37] Accordingly, I consider the decision to refuse to reimburse Mr Carr for his period of suspension without renumeration was a valid exercise of clause 6.10 of the directive.

• [38] It follows that I consider the decision under review to be fair and reasonable.

1. The decision appealed against is confirmed.

[1] Industrial Relations Act 2016 (Qld) s562B; Goodall v State of Queensland (Unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018), 5.

[2] Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245, 261 (Mason CJ, Brennan and Toohey JJ).

[3] Industrial Relations Act 2016 (Qld) s 562B(3).

[4] Ibid s 562C.

[5] Further submissions of the appellant, paragraph 2.

[6] Further submissions of the appellant, paragraph 11.

[7] Further submissions of the appellant, paragraph 13.

[8] Further submissions of the appellant, paragraphs 14-15.

[9] [2022] QIRC 350.

[10] Luna v State of Queensland (Department of Education) [2022] QIRC 419 [13].

[11] [2022] QIRC 332.