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[2023] ICQ 12
General information, not legal advice.
Industrial Court of Queensland
2023-06-07
Merrell DP
Original judgment source is linked above.
APPEAL AND NEW TRIAL - APPEAL GENERAL PRINCIPLES - RIGHT OF APPEAL - SCOPE AND EFFECT OF APPEAL - Appellant employed by the State of Queensland as a Senior Teacher in the Department of Education at the Maryborough State High School - Appellant suspended without remuneration for failing to comply with the Department of Education Employment Direction 1/21 - COVID‑19 Vaccinations - Appellant's suspension without remuneration subsequently cancelled - Appellant advised of decision that in accordance with sub‑cl 6.10 of Directive: 16/20 - Suspension directive, he would not be repaid for the period of time he was suspended without remuneration on the basis that he was not available to work during the period of suspension because he was not vaccinated against COVID-19 - Appellant, pursuant to ch 7, pt 1 of the Public Service Act 2008, appealed that decision to the Queensland Industrial Relations Commission - Queensland Industrial Relations Commission confirmed the decision that the Appellant would not be repaid for the period of time he was suspended without remuneration - Appellant appealed the decision of the Queensland Industrial Relations Commission to the Industrial Court of Queensland - no error of law in the decision of the Queensland Industrial Relations Commission - decision of the Queensland Industrial Relations Commission not affected by jurisdictional error - Appellant's appeal dismissed
COVID-19 Vaccination Requirements for Workers in a high-risk setting Direction, cl 9, cl 26, sch 1 and sch 2
COVID-19 Vaccination Requirements for Workers in a high-risk setting Direction (No.2), cl 10, sch 1 and sch 2
Employment Direction 1/21 - COVID-19 Vaccinations, cl 5
Public Health Act 2005, s 362B
Barmuncol Pty Ltd v Maroochy Shire Council [1983] 2 Qd R 639
Carr v State of Queensland (Department of Education) [2022] QIRC 188
Carr v State of Queensland (Department of Education) [2022] QIRC 463
Minister for Immigration v SZVFW [2018] HCA 30; (2018) 264 CLR 541
Winter v State of Queensland (Department of Education) [2022] QIRC 350
Mr L. Grant, Counsel, of Crown Law for the Respondent, with Mr H. Kecek of Crown Law and Ms L. Graham of the State of Queensland (Department of Education).
[1] Mr Joshua Carr is employed by the State of Queensland, through the Department of Education ('the Department'), as a Senior Teacher at the Maryborough State High School.
[2] By virtue of cl 5.c. of Employment Direction 1/21 - COVID‑19 Vaccinations issued by the Director-General of the Department and effective from 15 December 2021 ('the Departmental Direction'), Mr Carr was directed to have '... the prescribed number of doses of a COVID-19 vaccine' by 23 January 2022.
[4] By letter dated 10 January 2022 from Ms Genevieve Gillies-Day, Executive Director, People and Corporate Services, Mr Carr was advised that:
[5] By email sent on 16 January 2022, Mr Carr responded to Ms Gillies-Day's letter dated 10 January 2022.[2]
[6] By letter dated 27 January 2022, Mr Rynell Hastie-Burroughs, Executive Director, Business Partnering and Engagement, advised Mr Carr that, as from 27 January 2022, he would be suspended from duty without remuneration ('the suspension decision').[3]
[7] Mr Carr, pursuant to ch 7, pt 1 of the PS Act, appealed against the suspension decision to the Queensland Industrial Relations Commission. However, Mr Carr appealed the suspension decision after the expiration of the time limit to appeal. In a decision I made, sitting as the Queensland Industrial Relations Commission, I did not allow Mr Carr a longer period of time to start his appeal against the suspension decision.[4] There was no appeal against that decision to this Court.
[8] On 24 June 2022, Mr Carr received correspondence from Mr David Miller, Executive Director, which advised him that his suspension was cancelled effective from 1.00 am on 30 June 2022. In that correspondence, Mr Miller also advised Mr Carr that if he had been suspended without remuneration, he would not be repaid for the period he was suspended without remuneration ('the remuneration decision').[5]
[9] The reason given by Mr Miller for the remuneration decision was the application of sub‑cl 6.10 of Directive: 16/20 - Suspension directive ('the Suspension Directive'),[6] which relevantly provided that there is no such repayment where an employee is suspended without remuneration and where the employee was not available to work during the period of suspension for reasons other than being suspended.[7]
[10] Mr Carr, pursuant to ch 7, pt 1 of the PS Act, appealed the remuneration decision to the Commission.
[11] By decision dated 28 November 2022, the Commission confirmed the remuneration decision on the basis that it was fair and reasonable ('the primary decision').[8]
[12] By application to appeal filed on 19 December 2022, Mr Carr appeals against the primary decision to this Court.
[13] For the reasons that follow, Mr Carr's appeal against the primary decision should be dismissed.
[14] Mr Carr appeals against the primary decision pursuant to s 557 of the Industrial Relations Act 2016 ('the IR Act'). Mr Carr did not make application to the Court for leave to appeal on grounds other than error of law or in excess, or in want, of jurisdiction within the meaning of s 557(2) of the IR Act. Section 557(1) of the IR Act confers on a person aggrieved by a decision of the Commission, a right to appeal to this Court on the grounds of error of law or excess, or want, of jurisdiction. As a consequence, Mr Carr's appeal against the primary decision is limited to grounds that the primary decision is affected by errors of law or jurisdictional error.
[15] Section 567(1) of the IR Act provides that an appeal to this Court is by way of re‑hearing on the record. An appeal by way of re‑hearing is a procedure for the correction of error in that the existence of an error, whether of law or fact, on the part of the court at first instance, is an indispensable condition of a successful appeal.[9]
[16] Even where it can be demonstrated that there is an error of law in the decision appealed against, it must be shown that the error of law vitiates the decision before an appellate court would allow the appeal.[10]
[17] Clause 6 of the Suspension Directive ('Suspension without remuneration') relevantly provided:
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.
[18] On 11 December 2021, the COVID-19 Vaccination Requirements for Workers in a high‑risk setting Direction, issued by the Chief Health Officer, commenced operation ('the First CHO Direction').
[19] Under the First CHO Direction, workers were not permitted to enter, remain in, work in, or provide services in a high-risk setting unless they were fully vaccinated.[11] A 'high‑risk setting' was defined to include early childhood, primary and secondary educational settings, including schools.[12]
[20] The Departmental Direction relevantly provided:
Department Wide (excluding Office of Industrial Relations)
In recognition of the high risk of transmission of the COVID-19 virus, for the protection of vulnerable persons and that a sudden reduction in available workforce would significantly affect the continuity of education services (among others) on Saturday 11 December 2021 the COVID‑19 Vaccination Requirements for Workers in a high-risk setting Direction | Queensland Health (CHO Direction) was published re vaccination of workers in high-risk settings including:
The purpose of this direction is to outline the COVID-19 vaccination requirements for existing and prospective Department of Education workers (excluding OIR) who attend a high-risk setting as part of their role or the services they provide. [13]
The CHO Direction captures many Department of Education workers (excluding OIR) as the CHO direction applies to all workers in a high-risk setting and prevents entry to a high-risk setting unless the worker complies with the COVID-19 vaccination requirements with some very limited exceptions.
This Direction applies to all Department of Education workers who attend a high-risk setting as part of their role or the services they provide.
This Direction also applies to identified staff within regional and central offices who are required to be present in a school as part of their work duties, i.e. where attendance at a school is necessary to fulfil the requirements of their job.
[21] The First CHO Direction was replaced by the COVID-19 Vaccination Requirements for Workers in a high-risk setting Direction (No.2) ('the Second CHO Direction') effective from 4 February 2022. It also provided that workers were not permitted to enter, remain in, work in, or provide services in a high-risk setting unless they were fully vaccinated,[14] and it also defined a 'high-risk setting' to include early childhood, primary and secondary educational settings, including schools.[15]
[22] 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 provided:
(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.
[23] The First and Second CHO Directions contained provisions which, relevantly to Mr Carr's appeal, allowed particular persons to permit an unvaccinated worker to work in a high-risk setting in response to critical workforce shortages.
[24] For example, cl 26 of the First CHO Direction provided:
Note: An unvaccinated worker in a high-risk setting may enter, work in, or provide services in a high-risk setting to respond to a critical workforce shortage while workers who meet the COVID‑19 vaccination requirements are recruited or alternative arrangements are made to respond to the critical workforce shortage.[16]
[25] In terms of Critical Workforce Shortages, cl 9 of the Departmental Direction provided:
From 17 December 2021 unvaccinated workers without a qualifying exemption must not enter a high-risk setting unless there is an emergency or permission is granted in accordance with:
If an unvaccinated worker enters a high-risk setting in an emergency situation they must advise of the emergency entry and of their vaccination status as soon as is reasonably practicable.
[26] In the primary decision, the issue the Industrial Commissioner had to determine was whether or not the remuneration decision was fair and reasonable.
[27] Before the Industrial Commissioner, Mr Carr contended that because his employment had not been terminated, he should have been reimbursed all unpaid remuneration for the period of his suspension without remuneration.[17]
[28] In advancing that contention, Mr Carr submitted that:
[29] The Department relevantly submitted that the remuneration decision was fair and reasonable because Mr Carr was not able to lawfully enter his workplace due to his vaccination status and, as such, he was not entitled to remuneration during the period of his suspension without remuneration. In that regard, the Department referred to sub‑cl 6.10 of the Suspension Directive.[19]
[30] In coming to his decision that the remuneration decision was fair and reasonable, the Industrial Commissioner stated:
[31] I note that the appeal was filed on 15 July 2022 and that the submissions predominately pre‑date the release of 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. 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.
[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.[20]
[31] The Industrial Commissioner also referred to arguments made by Mr Carr, regarding the direction that he be vaccinated against COVID-19, that he had not been consulted about the Departmental Direction and that his human rights had been infringed, being arguments that Mr Carr contended were not considered by the Department before suspending him without remuneration. The Industrial Commissioner determined that none of those matters raised by Mr Carr arose out of the remuneration decision and, therefore, he was not prepared to consider them. The Industrial Commissioner stated that, in any event, had he considered them, they would have been dismissed for the same reasons those same arguments were dismissed in another case decided by the Industrial Commissioner.[21]
[32] Mr Carr represented himself in his appeal to this Court. Mr Carr's Application to appeal did not, as required by r 139(2)(c) of the Industrial Relations (Tribunals) Rules 2011, state concise grounds of appeal.
[33] Doing the best I can, by having regard to Mr Carr's Application to appeal, his written submissions and his oral submissions, Mr Carr attacks the primary decision on the following grounds:
The Departmental Direction was not fair and reasonable
[34] Mr Carr's contention that the Departmental Direction - that required him to have received the prescribed number of doses of a COVID-19 vaccine by a particular date - was not fair and reasonable is not an issue directly relevant to the remuneration decision.
[35] The reason for the remuneration decision was the application by the relevant decision maker of sub-cl 6.10 of the Suspension Directive, namely, that Mr Carr was not available to work during the period of suspension for reasons other than being suspended. The Industrial Commissioner found that Mr Carr was not available to work during the period of his suspension without remuneration for reasons other than being suspended, namely, that because he was unvaccinated against COVID-19, he was not permitted to work in a high-risk setting by virtue of the application of the First CHO Direction.
[36] The lawfulness or validity of the Departmental Direction is too remote from the primary decision which is the subject of Mr Carr's appeal.
[37] For these reasons, the first basis upon which Mr Carr attacks the primary decision is misconceived and cannot be a basis to determine that there is any error of law or jurisdictional error which affects the primary decision.
Whether Mr Carr was given enough time to determine whether or not he would comply with the Departmental Direction to be vaccinated
[38] Mr Carr's complaint is that there was only a short period of time between the 30 November 2021 decision by the Cabinet regarding vaccine mandates and the date he was required, by virtue of the Departmental Direction, to have the first dose of a COVID‑19 vaccine, namely, by 17 December 2021, such that there was not enough time for him to seek medical or legal advice about the requirement to be vaccinated.[22]
[39] Again, the issue of the lawfulness or validity of the Departmental Direction is too remote from the primary decision which is the subject of Mr Carr's appeal. Whether or not Mr Carr had enough time to make an informed decision about whether or not he would comply with the Departmental Direction is not relevant to whether or not the primary decision is vitiated by an error of law or jurisdictional error.
[40] For this reason, the second basis upon which Mr Carr attacks the primary decision is misconceived.
Mr Carr had asked for certain information from the Department concerning his suspension that was never provided to him
[41] Mr Carr submitted that on a number of occasions he sought information from the Department about the reasons why he was suspended. It is on this basis that Mr Carr contended before the Industrial Commissioner that the Department did not comply with the rules of natural justice in making the decision to suspend him without remuneration.[23]
[42] In his submissions in reply to the Court, Mr Carr requested that the Court expressly take into account his submission that the Industrial Commissioner did not consider this argument in the primary decision.
[43] For the reasons given earlier, the decision to suspend Mr Carr is not the decision the subject of the present appeal. The subject of Mr Carr's present appeal is the decision by the Industrial Commissioner that the decision of Mr Miller, not to repay Mr Carr remuneration for the period he was suspended without remuneration, was fair and reasonable.
[44] Whether or not the Department failed to comply with the rules of natural justice in making the decision to suspend Mr Carr was not a material issue that the Industrial Commissioner had to consider in determining whether or not the remuneration decision was fair and reasonable. For this reason, it is unremarkable that there is no decision about this argument in the reasons for decision given by the Industrial Commissioner in the primary decision.
[45] For the same reason, Mr Carr's contention that the Department failed to comply with the rules of natural justice in making the decision to suspend him is too far removed from the question of whether the primary decision is vitiated by errors of law or jurisdictional error.
Having regard to the Critical Workforce Shortages provisions in the CHO Directions and in the Departmental Direction, Mr Carr was available to attend work during the period of his suspension
[46] In his submissions in reply to this Court, Mr Carr expressly requested that the Court take into account the workforce shortages issues that he stated presented at his school during his period of suspension.
[47] Before the Industrial Commissioner, Mr Carr submitted that:
[48] The Industrial Commissioner, in determining that the remuneration decision was fair and reasonable, adopted the reasoning given in Winter v State of Queensland (Department of Education).[26] That is, the only reason Mr Carr was not available to work at his school during the period of his suspension, other than the fact of his suspension, was the application of the CHO Directions. The effect of the CHO Directions was that because Mr Carr was unvaccinated against COVID-19, he was not permitted to work at his school.[27]
[49] Indeed, the Industrial Commissioner expressly found that despite his willingness and perceived ability to work, Mr Carr did not confirm whether or not he was vaccinated and he did not have an exemption from being vaccinated such that, in those circumstances, he was not available to work for a reason other than being suspended; and that despite holding himself out as being available to work at the school during the period of his suspension, that fact could not alter the operation and effect of the CHO Directions.[28]
[50] In my view, the Industrial Commissioner was correct in dismissing Mr Carr's contention that he was available for work, including, by virtue of the fact that he could have been directed to attend work under the Critical Workforce Shortages provisions contained in the CHO Directions. The fact that a responsible person had the power to direct Mr Carr to attend work at the school by enlivening the Critical Workforce Shortages provisions contained in the CHO Directions, could not render, as inoperable, the primary provisions of the CHO Directions. The primary provisions of the CHO Directions were that if a worker was unvaccinated, they could not attend a high-risk setting, such as a school. It was Mr Carr's unvaccinated state that was the other reason for his inability to attend work at the Maryborough State High School during the period of his suspension. These were the reasons given by the Industrial Commissioner in coming to his conclusion that the remuneration decision was fair and reasonable.
[51] In any event, as Mr Carr conceded in argument before this Court, no responsible person at the Maryborough State High School made a decision that, in response to a critical workforce shortage, he was permitted to work at school.[29] Again, as the Industrial Commissioner found, correctly in my view, the fact that Mr Carr held himself out as being available to work during the period of his suspension could not oust the primary operation of the CHO Directions, namely, that while he was unvaccinated, Mr Carr was not permitted to work at the school.
[52] No error of law or jurisdictional error is discernible from these reasons given by the Industrial Commissioner.
[53] The facts before the Industrial Commissioner were that Mr Carr was unvaccinated and that, by the operation of the CHO Directions, he was not permitted to attend work at the Maryborough State High School while unvaccinated. Having regard to those facts, it cannot be said that the Industrial Commissioner's determination - that the reason Mr Carr was not available to work during the period of his suspension was due to the operation of the CHO Directions - was in error. No error of law arises in relation to the Industrial Commissioner's application of those facts to sub-cl 6.10 of the Suspension Directive. There was no suggestion by Mr Carr that the Industrial Commissioner misconstrued sub‑cl 6.10 of the Suspension Directive.
[54] Furthermore, the Industrial Commissioner correctly identified his function in hearing and determining Mr Carr's appeal against the remuneration decision, namely, that the Industrial Commissioner had to determine whether or not the remuneration decision was fair and reasonable.[30] In making that determination, the Industrial Commissioner correctly identified the material issues, namely, whether or not sub-cl 6.10 of the Suspension Directive had been enlivened in respect of the facts concerning Mr Carr.[31]
[55] This ground of appeal pursued by Mr Carr reveals no error of law or jurisdictional error in the primary decision.
[56] For the reasons I have given, Mr Carr's appeal against the primary decision must be dismissed.
Pursuant to s 558(1)(a) of the Industrial Relations Act 2016, the Appellant's appeal is dismissed.
[1] Carr v State of Queensland (Department of Education) [2022] QIRC 188, [4].
[5] Carr v State of Queensland (Department of Education) [2022] QIRC 463 ('Carr'), [4].
[6] Which is now superseded by Suspension (Directive 06/23).
[9] Minister for Immigration v SZVFW [2018] HCA 30; (2018) 264 CLR 541, [30] (Gageler J).
[10] Barmuncol Pty Ltd v Maroochy Shire Council [1983] 2 Qd R 639, 645 (Shepherdson J, Kelly J at 640 agreeing).
[11] COVID-19 Vaccination Requirements for Workers in a high-risk setting Direction, cl 9.
[12] Ibid, sch 1 (definition of 'High-risk setting') and sch 2.
[14] COVID-19 Vaccination Requirements for Workers in a high-risk setting Direction (No.2) ('the Second CHO Direction'), cl 10.
[15] Ibid, sch 1 (definition of 'High-risk setting') and sch 2.
[16] A similar provision was contained in the Second CHO Direction.
[26] [2022] QIRC 350, [21]-[26].
[30] Carr (n 5), [7]. See also s 562B(3) of the Industrial Relations Act 2016.
Carr
State of Queensland
(2018) 264 CLR 541