Carr v State of Queensland

Human Rights Act 2019 (Qld) s 58

Industrial Relations Act 2016 (Qld) ss 447, 539, 562A, 562B, 564

Public Sector Act 2022 (Qld) ss 129, 324

Public Service Act 2008 (Qld) ss 47, 53, 137, 137A, 192A, 194

Public Service Commission Chief Executive Guideline 01/17 Discipline cls 15.4, 15.5, 16.3, sch 8, sch 9

Public Service Commission Directive 16/20 Suspension cls 6.6, 6.10

AN v State of Queensland (Department of Education) [2023] QIRC 289

Bakhash v State of Queensland (Department of Education) [2022] QIRC 362

Borkowski v State of Queensland (Queensland Corrective Services) [2021] QIRC 330

Carr v State of Queensland (Department of Education) [2022] QIRC 188

Carr v State of Queensland (Department of Education) [2022] QIRC 463

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

Limpus v State of Queensland (Department of Environment and Science) [2023] QIRC 184

Mackenzie v State of Queensland (Queensland Health) [2023] QIRC 121

Mocnik & Ors v State of Queensland (Queensland Health) [2023] QIRC 058

Nuske v State of Queensland (Department of Education) [2023] QIRC 199

O'Hearn v State of Queensland (Queensland Health) [2023] QIRC 283

Rossiter v State of Queensland (Department of Education) [2024] QIRC 25

Sankey v State of Queensland (Department of Education) [2024] QIRC 197

Slykerman v State of Queensland (Queensland Health) [2022] QIRC 039

• [1] This is an appeal that was commenced after a disciplinary decision to reprimand the Appellant, and to reduce his remuneration for eighteen weeks.

• [2] The Appellant, Mr Joshua Carr, is employed by the State of Queensland (Department of Education) as a Senior Teacher.
• [3] The Department of Education Employment Direction 1/21 - COVID-19 Vaccinations took effect from 15 December 2021. It was superseded by Department of Education Employment Direction 1/22 - COVID-19 Vaccinations which took effect from March 2022 but did not materially alter the vaccination obligation. Though the two instruments operated in succession, for convenience I will refer to them collectively as "the Direction."
• [4] The Direction applied to the Appellant, requiring him to receive or provide evidence of having received two doses of a COVID-19 vaccination.
• [5] The Direction was in force until revoked effective 30 June 2022.
• [6] It is not in dispute that the Appellant did not comply with the Direction's vaccination requirement.
• [7] The Appellant was suspended from duties, initially with pay and then without pay. It is not in dispute that he was suspended without pay from January 2022, and that he took sick leave from 28 January 2022 until 29 April 2022.[1] His suspension has been referred to in earlier decisions of this Commission.[2]
• [8] The Appellant was subject to a disciplinary process in relation to his failure to comply with the Direction. In the course of that process:

(a) by letter dated 21 June 2022, he was asked to show cause why disciplinary findings should not be made ('the first show cause letter');[3]

(b) on 5 July 2022 he provided a response ('the disciplinary findings show cause response');[4]

(c) by letter of 1 August 2022 ('the second show cause letter')[5] he was advised that a disciplinary findings decision had been made, and in light of that decision he was invited to show cause why disciplinary action should not be taken; and

(d) on 7 August 2022 he provided a response ('the disciplinary action show cause response').[6]

• [9] By email dated 22 August 2022 Ms Anne Crowley, Assistant Director-General, Human Resources, Department of Education, gave her decision in relation to disciplinary action ('the disciplinary action decision').[7] She decided to impose the following disciplinary action on the Appellant:

(a) a reduction in remuneration from Senior Teacher A03-04 to Teacher B03-04 for a period of eighteen weeks; and

(b) a reprimand.

• [10] Though this appeal was brought pursuant to section 194 of the Public Service Act 2008 (Qld), it must be heard and decided under Chapter 3, Part 10 of the Public Sector Act 2022 (Qld),[8] and, accordingly, also Chapter 11 of the Industrial Relations Act 2016 (Qld).

• [11] Mr Carr now appeals the disciplinary action decision. He lodged his Appeal Notice on 5 September 2022, attaching a copy of the email of 22 August 2022 that set out that decision. The grounds of appeal stated in the appeal notice were as follows:[9]

I am appealing the Department of Education decision to apply the discipline outlined in the attached document, that of a drop from pay scale A03-04 to B03-04 for a period of 18 weeks and an official reprimand. > > I believe that I can show that the Dept of Education has violated my Human Rights in threatening to discipline me for the belief that I hold in regards to the matter at hand and that they have violated my Human Rights in discriminating against me in this matter. I am also certain that I can show that the Dept of Education has failed to follow Natural Justice in this process and has refused to consider the clearly explained information have supplied to them as being suitable, in their eyes, as to my actions in this matter.

• [12] The disciplinary action decision is one from which an appeal may be brought. The Appellant has standing to bring the appeal. The appeal notice was filed within the appeal period.
• [13] The Respondent seeks that the Commission exercise its discretion not to hear the appeal, pursuant to section 562A of the Industrial Relations Act, which relevantly provides:

562A Commission may decide not to hear particular public service appeals > > ... > > (3) The commission may decide it will not hear a public service appeal against a decision if - > > ... > > (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.

• [14] In reliance on section 562A(3), the Respondent says that it would not be in the public interest for the Commission to hear the appeal because the matters raised in this appeal have previously been heard and determined by the Commission or are otherwise misconceived or lacking in substance.
• [15] As can be appreciated from the terms of section 562A(3)(b), the Appellant is put to the task of establishing an arguable case.
• [16] On 18 April 2024 a delegate of the Industrial Registrar made directions providing for the parties to file and serve submissions. After those directions had been made:

(a) the Appellant filed submissions on 10 May 2024;

(b) the Respondent filed submissions on 31 May 2024; and

(c) the Appellant filed submissions in reply on 8 July 2024.

• [17] Mr Carr requested an oral hearing. A hearing was conducted on 20 August 2024. I record my appreciation for the constructive approach the parties took to the hearing.

• [18] The Appellant's submissions went to various arguments about whether non-compliance with the vaccine mandate was or could be grounds for discipline, including whether directions to receive the COVID-19 vaccination were lawful and reasonable directions. He also stated his personal belief that a body supplied with the right amount of nutrients can amply fight off infections, that vaccinations are not necessary, and that almost all current vaccines have some element of deleterious action in the body. He also made submissions about medical considerations and the efficacy, safety, and efficiency of certain vaccines. The Appellant also made submissions about the harshness of the penalty and mitigating circumstances.
• [19] The Respondent referred to the extensive previous litigation in this Commission in relation to matters in which an Appellant has not complied with vaccination directions. They say the decision under appeal was fair and reasonable. The respond to various arguments relating to whether non-compliance with the vaccine mandate was or could be grounds for discipline. They say that, having regard to previous decisions, it does not serve the public interest for the appeal to be further heard.
• [20] Both parties provided analyses of decisions relating to lawful and reasonable directions.
• [21] The foregoing is my summary of the parties' submissions. It is not a full statement of the entirety of their submissions, which I have carefully reviewed and considered.

• [22] I will consider whether the Appellant has an arguable case for the appeal, and whether the appeal is misconceived or lacks substance, or should not be heard for another compelling reason.

• [23] Having regard to the written and oral submissions, the Appellant was clearly of the view that by bringing this appeal he was challenging both the disciplinary findings decision and the disciplinary action decision.
• [24] At hearing I asked the parties how I had jurisdiction to look behind the disciplinary findings decision.
• [25] The Appellant's submission was that if a decision to discipline him was to be fair and reasonable, then the decision that he had engaged in conduct making him liable for discipline also had to be fair and reasonable.[10]
• [26] The Respondent submitted I could not look behind the earlier decision because public service appeals are creatures of statute (specifically, section 562B of the Industrial Relations Act), the appeal is a review of the decision appealed against, and the jurisdiction is enlivened by the appeal being filed.[11]
• [27] The Appellant's submission is consistent with previous decisions of this Commission, in which the fairness and reasonableness of both the disciplinary findings decision and the disciplinary action decision have both been considered in the appeal of the latter.[12] In such decisions an appeal from a disciplinary action decision seeking to challenge both that decision and the earlier disciplinary finding decision has been taken to be in time in respect of both.[13]
• [28] The Appellant's submission is also consistent with the Public Service Commission Chief Executive Guideline 01/17: Discipline,[14] and the template letter scheduled to that guideline,[15] which treat the disciplinary findings decision as both a fair treatment decision[16] and a part of the disciplinary decision.[17] The guideline did not form part of that Directive and was for guidance only.[18]
• [29] Under the previous Public Service Act, an appeal could be made in relation to "a decision under a disciplinary law to discipline ... a person (other than by termination of employment), including the action taken in disciplining the person...".[19] The definition the Public Sector Act is materially the same.[20] The previous decisions referred to above, as well as the guidance material, proceed on the basis that this definition includes the disciplinary findings decision and the disciplinary action decision.
• [30] The difficulty I have with this is that under the process the disciplinary findings decision is a decision that the person is liable for discipline, but there is not yet, at that stage, a decision to discipline. After making a decision on liability (i.e., a disciplinary findings decision), the decision-maker has the option to desist from imposing discipline, and take no further action,[21] notwithstanding they have found that liability exists. A decision on liability is not of itself a decision to discipline; it merely enlivens the power to discipline.
• [31] Before making a definite decision to discipline the employee, the decision-maker puts them on notice that they are considering imposing disciplinary action, and on notice of the specific action being considered. The employee is then given an opportunity to show cause as to why such action should not be taken. The decision to discipline, and the decision about the specific disciplinary action, are made after the employee has had that opportunity. Procedural fairness is afforded at both stages. I would therefore take the definition as referring to both the decision to discipline, and the decision as to the specific action to be taken, but not the earlier decision as to liability.
• [32] It also seems surprising that the same decision, the disciplinary findings decision, would constitute both a fair treatment decision and a constituent part of a disciplinary decision within the same statutory scheme.
• [33] As can be appreciated from my comments above, I favour the Respondent's submission. In my view the disciplinary findings decision is a fair treatment decision and, absent any issue of invalidity arising from jurisdictional error, if undisturbed by appeal or review should be taken at face value, both by the decision-maker in the disciplinary action stage of the process, and in any appeal or review of the disciplinary action decision.
• [34] Alternatively, even if the earlier decision can be revisited in the course of the appeal of the later decision, it would seem likely that it would usually be fair and reasonable for the decision-maker to have taken the earlier disciplinary findings decision at face value when deciding the disciplinary action to be imposed.
• [35] I appreciate this is a different approach to that taken in relation to applications for reinstatement in reliance on the unfair dismissal provisions of the Industrial Relations Act. The statutory schemes differ from each other.
• [36] In the circumstances, though, it is unnecessary to decide this question, because I will make orders to ensure the Appellant can raise his arguments in relation to the disciplinary findings decision, for the following reasons.
• [37] The Respondent adhered to the Public Service Commission's guidance and template letter and included the following paragraph in the disciplinary findings decision letter of 1 August 2022:[22]

Appeal entitlements > > If you believe that my decision to find that the allegation above is substantiated (disciplinary finding decision) is unfair and unreasonable, you may lodge a fair treatment appeal under the appeal provisions of the Public Service Act 2008. Alternatively, you may decide to wait until I have made a decision about the proposed disciplinary action and appeal both the disciplinary finding and the disciplinary action.

• [38] I am obliged to perform the Commission's functions in a way that avoids unnecessary technicalities and facilitates the fair and practical conduct of proceedings under the Industrial Relations Act.[23]
• [39] Regardless of whether the earlier disciplinary findings decision can be revisited in an appeal of the disciplinary action decision, the Appellant should be able to raise arguments in that regard, given the explicit guidance the Respondent provided to him.
• [40] Accordingly, I correct, amend or waive any error, defect or irregularity in the appeal notice to the extent, if any, necessary to do so in order to take the appeal notice as commencing an appeal against both decisions.[24] To the extent, if any, necessary to do so, I allow the appeal of the disciplinary findings decision to be started within a longer period.[25]
• [41] Having considered that issue I now turn to the consideration of whether there is an arguable case that the disciplinary findings decision was not fair and reasonable.
• [42] The submissions the Appellant has made about the disciplinary findings decision are to the same effect as submissions ventilated in those previous proceedings before this Commission. There are many previous decisions of this Commission that have considered the various arguments made about whether non-compliance with vaccination mandates gives rise to grounds for discipline.[26] The Respondent relied upon the recently released decision of Sankey v State of Queensland (Department of Education) [2024] QIRC 197 which conveniently canvasses various issues raised in the various COVID-19 vaccine cases. I will not recite the findings to be derived from the large body of authorities here. It suffices to say that I agree with the findings made relevant to whether the failure to comply with the Direction or similar directions gave rise to liability for discipline.
• [43] Without traversing all of the issues, I will specifically consider the ground the Appellant raised in relation to his human rights. In support of that ground the Appellant referred to the decision in Johnston & Ors v Carroll (Commissioner of the Queensland Police Service) & Anor[27] and the Human Rights Act 2019 (Qld). He properly conceded that the decision in Carroll was not about the Direction the subject of these proceedings.[28] In Carroll, the Court explicitly held that unlawfulness under section 58(1) of the Human Rights Act did not necessitate a conclusion of invalidity.[29]
• [44] When the decisions under appeal were made, there was no decision of the Court finding any unlawfulness in relation to the Direction consequent upon the Human Rights Act, and even if there had been, that would not have the effect that the Direction was invalid. Carroll does not assist the Appellant in demonstrating he has an arguable case in this appeal.
• [45] Having regard to the appeal notice, the submissions, and the substantial body of authorities, the Appellant has not demonstrated he has an arguable case. This militates against a decision that this appeal should be heard.

• [46] The now-superseded Public Service Commission's Directive 14/20, Discipline, [30] which was in force at the time, was binding upon those to whom it applied[31] including the parties in this matter, required discipline to be "timely, fair, appropriate, and proportionate to the seriousness of the work performance matter."[32] The current directive, Directive 05/23, Discipline, contains analogous provisions. The criteria for considering whether discipline action is appropriate and proportionate are set out in each.[33] I will not recite them here and will confine my consideration to the issues that the Appellant raised in relation to the disciplinary action.
• [47] The Appellant argues that the disciplinary action imposed was harsh. He says that as he was the sole breadwinner in his household the impact was significant.[34] This Commission has held that "failure to comply with a lawful and reasonable direction is a serious act of insubordination" that, "failing any compelling mitigating factors, would justify termination of employment."[35] Given the seriousness, a reduction in remuneration and a reprimand is likely to be considered a measured and proportionate response. In Nuske v State of Queensland (Department of Education)[36] the Appellant in that matter failed to persuade the Commission that a reduction of remuneration from Experienced Teacher to Senior Teacher for eighteen weeks, imposed in materially the same circumstances, was not proportionate.
• [48] I do not seek to minimise or diminish the impact of the penalty upon the Appellant and his family. I accept his submission that the impact was significant. However, having regard to the range of penalties reasonably able to be imposed for non-compliance with a lawful and reasonable direction, including dismissal, the penalty imposed on the Appellant was comparatively lenient. It is likely this was by design, to increase the likelihood of the disciplinary action withstanding challenge.[37]
• [49] The Appellant also notes that he had already suffered financial disadvantage prior to the decision, because he had been suspended from work while unvaccinated. He says that it was not fair and reasonable for further financial disadvantage to be imposed upon him.
• [50] The Respondent argues that the suspension occurred because the Appellant was not available for work. He was not available because he had not complied with the vaccination requirement. It says that the suspension without pay was not disciplinary action.[38] Its position is therefore that any financial disbenefit the Appellant suffered as a consequence of it should not be taken into account in considering whether the disciplinary action constituted by the subsequent reduction in remuneration was harsh. It says there is nothing unique or novel in the Appellant's submissions in relation to this such that would favour refusing to grant the request that the matter not be heard.[39]
• [51] At the time of the Appellant's suspension, section 137 of the Public Service Act relevantly provided:

137 Suspension > > (1) The chief executive of a department may, by notice, suspend a person from duty if the chief executive reasonably believes - > > ... > > (b) for a public service employee - the employee is liable to discipline under a disciplinary law. > > ... > > (4) A public service employee is entitled to normal remuneration during a suspension, unless - > > (a) the person is suspended under subsection (1)(b); and > > (b) the chief executive considers it is not appropriate for the employee to be entitled to normal remuneration during the suspension, having regard to the nature of the discipline to which the chief executive believes the person is liable. > > ... > > (9) In suspending a public service employee under this section, the chief executive must comply with - > > ... > > (c) the directive made under section 137A. > > ...

• [52] The Directive made under section 137A of the then Public Service Act was the Public Service Commission's Directive 16/20, Suspension, which provided for suspension without pay at cl 6. That clause allowed a person who had been suspended without pay to apply for reimbursement if the disciplinary process did not result in termination of employment,[40] but reimbursement was not to be made for any period the person was not available to work.[41] This Commission has already found that Mr Carr was not, during his suspension, available for work within the meaning of that phrase for the purposes of that directive.[42] As Mr Carr would have been reimbursed but for his lack of availability to work, it follows that it was fair and reasonable for the decision-maker to disregard the financial impact of the suspension in deciding the disciplinary action to be imposed.
• [53] If I am incorrect in this regard, then the Appellant nonetheless faces the same hurdle as he does in relation to whether the penalty is harsh generally: failing to comply with lawful and reasonable directions is a serious matter and it would have been open to the Respondent to impose a heavier penalty, as discussed above.
• [54] The Appellant also considered the Respondent had not or had not adequately considered relevant mitigating circumstances. In his second show cause response he indicated[43] that he had negotiated a return to his workplace in a 0.5 full time equivalent load due to the care needs of a chronically ill member of his household. His response went on to say that this meant he had decided to take a reduction in pay, that he was not eligible for any government support as a consequence of this decision, and that he was the sole income earner.
• [55] The material demonstrates that in his second show cause response he had asked the decision-maker to take into account, in mitigation, those personal circumstances.[44] The decision-maker, in the disciplinary action decision, said:[45]

While I note your submissions, I am satisfied that you have not provided an explanation, or information regarding extenuating or mitigating circumstances that leads me to believe that the disciplinary action is unreasonable in the circumstances.

• [56] On one reading this could be taken as indicating Mr Carr did not put forward any extenuating or mitigating circumstances. If so, that is incorrect as the submission regarding mitigation is clear on the face of his second show cause response. Alternatively, Ms Crowley's sentence could be read as indicating she considers that any submission put forward as to mitigation was not persuasive.
• [57] The Respondent submitted that even if Ms Crowley did not take into account the information provided in mitigation, that would not have rendered the entire decision unfair or unreasonable.[46]
• [58] Given the comparative lenience of the disciplinary action, which I have discussed above, it seems unlikely that even if Ms Crowley failed to consider the relevant mitigating circumstance, that led to a harsher penalty being imposed than otherwise would have been the case. Accordingly, if there was a failure to properly consider the submission in mitigation, it was not, in the context of the decision, sufficient to establish that appellant has an arguable case.

• [59] This appeal is about whether the disciplinary findings decision and the disciplinary action decision were fair and reasonable.
• [60] It has much in common with the many other matters dealt with, in this Commission, in relation to public service employees who objected to vaccination requirements.
• [61] The Appellant has not established he has an arguable case. The appeal is misconceived and lacking in substance. It is not in the public interest for further public resources to be devoted to this matter.

• [62] For the reasons set out above, the discretion in section 562A(3) is enlivened, and I exercise that discretion to decide that the appeal will not be heard.

Pursuant to s 562A(3) of the Industrial Relations Act 2016 (Qld), the Commission will not hear the appeal.

[1] Respondent's written submissions filed 31 May 2024, [5].

[2] Carr v State of Queensland (Department of Education) [2022] QIRC 188 (Merrell DP) and Carr v State of Queensland (Department of Education) [2022] QIRC 463 (Dwyer IC).

[3] Respondent's written submissions filed 31 May 2024, attachment 1.

[4] Respondent's written submissions filed 31 May 2024, attachment 2.

[5] Respondent's written submissions filed 31 May 2024, attachment 3.

[6] Respondent's written submissions filed 31 May 2024, attachment 4.

[7] Appeal notice, attachment; Respondent's written submissions filed 31 May 2024, attachment 5.

[8] Public Sector Act 2022 (Qld) s 324. See more broadly Chapter 9 of that Act which sets out repeal, savings, and transitional provisions.

[9] Appeal notice filed 5 September 2022, pt C.

[12] See for example Limpus v State of Queensland (Department of Environment and Science) [2023] QIRC 184 (Pidgeon IC), AN v State of Queensland (Department of Education) [2023] QIRC 289, Borkowski v State of Queensland (Queensland Corrective Services) [2021] QIRC 330 (Merrell DP), and O'Hearn v State of Queensland (Queensland Health) [2023] QIRC 283 (Power IC).

[13] Explicitly dealt with in AN v State of Queensland (Department of Education) [2023] QIRC 289 (Power IC), [31].

[14] Public Service Commission Chief Executive Guideline 01/17: Discipline cl 16.3.

[15] Public Service Commission Chief Executive Guideline 01/17: Discipline cl 15.5 and sch 9.

[16] Public Service Commission Chief Executive Guideline 01/17: Discipline cl 15.4.

[17] Public Service Commission Chief Executive Guideline 01/17: Discipline cl 16.3 and sch 9.

[18] Public Service Act 2008 s 47, as in force at the time; Guideline 01/17: Discipline remains in force and under cl 5.6 of the current Discipline Directive, the decision-maker is required to consider it.

[20] Public Sector Act s 129.

[21] Former Discipline Directive 14/20 cl 8.4(e); Guideline 01/17 cl 15.1 and sch 8; this is continued by the current Discipline Directive 05/23 at cl 9.4(e).

[22] Respondent's written submissions filed 31 May 2024, Attachment 3, 4.

[23] Industrial Relations Act s 447(2)(b).

[24] Pursuant to s 539(e), Industrial Relations Act.

[25] Pursuant to s 564(2), Industrial Relations Act.

[26] See for example Mackenzie v State of Queensland (Queensland Health) [2023] QIRC 121, Mocnik & Others v State of Queensland (Queensland Health) [2023] QIRC 58, Nuske v State of Queensland (Department of Education) [2023] QIRC 199, Slykerman v State of Queensland (Queensland Health) [2022] QIRC 039 and other decisions, many of which have recently been considered in Sankey v State of Queensland (Department of Education) [2024] QIRC 197 (Gazenbeek IC).

[27] 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 (Martin SJA) ('Carroll').

[30] Given effect by ss 53 and 192A of the Public Service Act as then in force.

[31] Public Service Act s 47(3), as then in force.

[32] Public Service Commission Directive 14/20 Discipline cl 4.4(a).

[33] Directive 05/23 Discipline, and former cl 8.5(d), Directive 14/20 Discipline cl 9.5(d).

[35] Rossiter v State of Queensland (Department of Education) [2024] QIRC 25 (O'Connor VP), [22], citing Bakhash v State of Queensland (Department of Education) [2022] QIRC 362 (Dwyer IC), [27].

[36] Nuske v State of Queensland (Department of Education) [2023] QIRC 199 (O'Connor VP), [90].

[37] See Nuske v State of Queensland (Department of Education) [2023] QIRC 199 (O'Connor VP), [78].

[40] Public Service Commission Directive 16/20 Suspension cl 6.6.

[41] Public Service Commission Directive 16/20 Suspension cl 6.10.

[42] Carr v State of Queensland (Department of Education) [2022] QIRC 463 (Dwyer IC).

[43] Respondent's written submissions filed 31 May 2024, attachment 4, 7-8.

[45] Appeal notice, attachment 2; Respondent's written submissions filed 31 May 2024, attachment 5, 2.