Dau v State of Queensland

Public Service Act 2008 (Qld), s 193

Public Sector Act 2022 (Qld), ss 134, 324

Human Rights Act 2019 (Qld), ss 20, 21

Anti-Discrimination Act 1991 (Qld), s 7

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

Colebourne v State of Queensland (Queensland Police Service) (No. 2) [2022] QIRC 16

Johnston v Carroll [2024] QSC 2; (2024) 329 IR 365

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

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

Sainty v State of Queensland (Queensland Health) (No. 2) [2023] QIRC 78

Sturgess v State of Queensland (Department of Education) [2024] QIRC 236

• [1] Ms Cassandra Dau ('Appellant') appeals a decision made on 22 August 2022 on behalf of the Department of Education ('Respondent') by Ms Anne Crowley, Assistant Director-General, Human Resources, Department of Education, to reprimand the Appellant and reduce her remuneration from pay point B03-02 to B03-01 for 18 weeks for failing to follow directions without reasonable excuse ('Decision'). The relevant direction was to receive prescribed doses of a COVID-19 vaccine and to provide proof of having done so by stipulated dates. The direction was made under Department of Education Employment Direction 1/21 - COVID-19 Vaccinations, which was later remade in the same terms in the form of the Department of Education Employment Direction 1/22 - COVID-19 Vaccinations ('Directions').

• [2] It was a lengthy and involved process between the parties, the most relevant fact (for these proceedings) arising of which is that the Appellant did not comply with the Directions.

• [3] On 14 June 2022, Mr David Miller, Executive Director, Early Learning and Development invited the Appellant to show cause as to whether she had contravened the Directions without reasonable excuse. After considering the Appellant's response to the show cause notice, Ms Crowley decided that the allegation was substantiated and conveyed that decision to the Appellant in a letter on 1 August 2022. In that decision Ms Crowley gave the Appellant seven days to show cause as to why the Appellant should not be disciplined as proposed. The Appellant responded and Ms Crowley considered that response before deciding on 22 August 2022 to discipline the Appellant in the manner set out above.

• [4] The Public Sector Act 2022 (Qld) ('PS Act') superseded the Public Service Act 2008 (Qld) ('repealed Act'). Section 324 of the PS Act provides that the hearing of appeals brought under the repealed Act are heard pursuant to Chapter 3, Part 10 of the PS Act. The appeal is therefore to be heard and determined by the Queensland Industrial Relations Commission ('Commission') under Chapter 11 of the Industrial Relations Act 2016 (Qld) ('IR Act') pursuant to s 134 of the PS Act.

• [5] Section 562A(3) of the IR Act relevantly says:

(3) The commission may decide it will not hear a public service appeal against a decision if -

(a) the appellant has made an application to a court or tribunal relating to the decision, whether or not the application has been fully decided; or

(b) the commission reasonably believes, after asking the appellant to establish by oral or written submissions that the appellant has an arguable case for the appeal, that the appeal -

(iii) should not be heard for another compelling reason.

• [6] Public sector appeals are not a re-hearing of the case on its merits. They are confined to a review of the relevant decision to establish whether that decision was fair and reasonable. His Honour, Merrell DP, considered in detail the meaning of 'fair and reasonable' in Colebourne v State of Queensland (Queensland Police Service) (No. 2),[1] and found that the phrase is to be understood by reference to its plain meaning. It is not the test of the legal standard of reasonableness as used in the judicial review of administrative decisions.[2]

• [7] I have considered all the submissions advanced by the parties in their written materials filed in this matter. I refer only to that material in these reasons which is most relevant to these reasons.

• [8] It is important to note that the Decision is that which imposed discipline in the form of an 18 weeks' long reduction of pay and a reprimand. If this matter is to be heard, the test to be applied would be whether the reduction in pay and the reprimand were fair and reasonable. The earlier decision issued on 1 August 2022, which found the Appellant had contravened the Directions without reasonable excuse, cannot be the subject of these proceedings for the same reasons as I explained in Patterson v State of Queensland (Queensland Corrective Services) (No. 2).[3] Any arguments about what reasons or excuses the Appellant proffered for not complying with the Directions are therefore of no relevance to the appeal of the discipline decision before me now. Any appeal of that earlier decision about not complying with the Directions needed to have been filed within 21 days of that decision.[4] No such appeal was filed.

• [9] The Appellant argues that the reduction in pay imposed by the Decision was not fair and reasonable because the Directions themselves were not lawful and reasonable. The Respondent points to a long list of decisions finding that the Directions were lawful and reasonable and highlights the plethora of cases within which the Commission has found that failing to comply with a lawful and reasonable direction by an employer is a serious thing for an employee to do.[5]

• [10] I cannot see that the Appellant's argument has any prospect of overcoming the law which the Respondent has referred to. The authorities against this argument are as clear as they are abundant. The Directions were lawful and reasonable, and it was a serious act by an employee such as the Appellant to not comply with it. The Appellant either did not consider these authorities or simply disagrees with them. This argument is nonetheless without any prospects because it is the same the point being argued that has been rejected by the Commission in numerous cases prior.

• [11] Furthermore, in truth, this argument actually challenges the earlier decision finding that the Appellant failed to comply with the Directions without a reasonable excuse. Any challenge to that decision is out of time and beyond the scope of this appeal. Accordingly, even if the argument had prospects of success, it could not be considered as part of this appeal. That is a compelling reason in my opinion not to hear this argument.

• [12] This argument is essentially that the Respondent denied the Appellant procedural fairness by subjecting her to the same process as many others. The Appellant raised this in both her response to Mr Miller's letter dated 14 June 2022 and in the Appeal Notice.

• [13] The insurmountable difficulty that the Appellant has failed to address with this argument is that this process, and this argument, were considered comprehensively and rejected by the Commission in Nuske v State of Queensland (Department of Education) ('Nuske').[6] His Honour, O'Connor VP, held that the Respondent's process did provide procedural fairness and therefore there was no denial of natural justice to those who took part in that process.[7] This point is pressed by the Respondent in its submissions too. I agree. On my assessment, the argument advanced by the Appellant here is no different to the one considered in Nuske. It would be pointless and wasteful to hear this 'one size fits all' argument when it cannot possibly succeed.

• [14] But like the 'lawful and reasonable' argument above, this argument too is actually just another challenge to the decision finding that the Appellant failed to comply with the Directions without a reasonable excuse. Such challenges are out of time. They are beyond the scope of this appeal. And so again, even if this argument had prospects of success, which it does not in my opinion, it could not be considered as part of this appeal. In my view, these are compelling reasons not to hear these arguments.

• [15] In the Appellant's response to Mr Miller's letter dated 14 June 2022, the Appellant argues that the Respondent did not satisfy her request for consultation and a risk assessment. The Appellant repeats this argument in the Appeal Notice and again in her submissions. The Appellant also argues that the Respondent did not meet its consultation obligations under the relevant industrial instruments and the Work Health and Safety Act 2011 (Qld) ('WHS Act'). The Appellant repeats this argument in her response to Ms Crowley's letter dated 1 August 2022, again arguing that the lack of consultation meant she could not make an informed decision and repeats this argument in her submissions.

• [16] The fatal flaw in this argument is that it is also actually a challenge to the decision finding that the Appellant's excuse proffered for not complying with the Directions was not a reasonable one. That is because it argues that there was a reasonable excuse for not complying with the Directions in the form of there being no adequate risk assessment produced upon request. As I have noted above, this challenge to that earlier decision cannot be heard as part of this appeal. That alone renders the argument one that cannot be heard.

• [17] In any case, the argument is doomed to fail for other reasons. His Honour, O'Connor VP, held in Mocnik & Ors v State of Queensland (Queensland Health),[8] that employers like the Respondent are under no obligation to provide risk assessments under the WHS Act upon request from individual applicants. In Sainty v State of Queensland (Queensland Health) (No. 2),[9] his Honour, Merrell DP, also dealt with an appellant who wanted a risk assessment done before agreeing to be vaccinated.[10] His Honour held that this amounted to no more than vaccine hesitancy and that this was not a reasonable excuse for failing to comply with COVID-19 vaccination requirements.[11] The Appellant's argument is substantially no different to the arguments that were rejected by the Commission in Mocnik and Sainty. Hence, even if this argument could be heard as part of this appeal, it is bound to fail. That too is a compelling reason in my opinion not to hear this argument.

The 'Human Rights Act' Argument

• [18] In the Appeal Notice, the Appellant argues that the Respondent violated the Appellant's freedom of thought, conscience, religion and belief under s 20 of the Human Rights Act 2019 (Qld) ('HR Act') by punishing the Appellant for not accepting the vaccine when the Appellant's conscience would not allow her to have the vaccine.

• [19] In the Appellant's response to Mr Miller's letter dated 14 June 2022, the Appellant argues that the Respondent did not consider her human rights as required by clause 4.5 of Directive 14/20: Discipline. The Appellant says that she was discriminated against on the basis of political belief and of trade union activity in contravention of s 7(j)-(k) of the Anti-Discrimination Act 1991 (Qld) ('AD Act') because she was communicated with differently and because consultation only occurred to the exclusion of unregistered industrial organisations. The Appellant repeats this argument in the Appeal Notice, and adds that not allowing her to enter the school was another form of discrimination. The Appellant also argues that her freedom of expression and the right to seek and receive information of all kinds covered under s 21 of the HR Act were violated because the Respondent did not meet with the Appellant or the Appellant's representatives to address the Appellant's concerns about the vaccine mandate and the Directions.

• [20] The Respondent submits that the Appellant's human rights were considered but that the Decision was demonstrably justified because it was in the public interest to ensure that employees of the Respondent complied with lawful and reasonable directions and that this outweighed any potential impact on the Appellant's human rights.

• [21] The claims about contraventions of the AD Act are misconceived. They do not in any way raise a ground of appeal that actually challenges the Decision. It needs to be remembered that the only basis upon which an argument appealing the Decision can be considered is if the argument legitimately challenges the fairness and reasonableness of the Decision. Unsubstantiated and unparticularised claims that the Respondent contravened other legislation when it found that the Directions were contravened are irrelevant to this appeal because they do not address the Decision.

• [22] The argument that the HR Act was breached is also misconceived. In summary, the argument is that the Respondent violated the Appellant's freedom of thought, conscience, religion and belief by punishing the Appellant for refusing to be vaccinated. However, that too is actually another challenge to the earlier decision of the Respondent finding that the Appellant failed to comply with the Directions without a reasonable excuse. That decision, whilst being a necessary precursor to the Decision, was not appealed. It cannot be the subject of this appeal and so this argument is misconceived.

• [23] However, even if those arguments could be heard as part of this appeal, and were directed towards whether the Decision was fair and reasonable, the arguments have been rejected by the Commission previously. The Commission has found that curtailing of such human rights in relation to the Directions was justified.[12] There is no point in hearing this argument which is misguided, without jurisdiction and otherwise doomed to fail on its merits.

• [24] The Appellant also challenges the Decision on the basis that the Appellant was previously suspended without pay and so any further reduction in remuneration would place an excessive financial burden on her. However, this argument too has failed in the Commission previously. It therefore has no prospects of success. But even if there was an arguable point here, on close inspection it can be seen that this argument is actually a challenge to the fairness and reasonableness of the earlier and separate decision to suspend without pay. That cannot be heard as part of this appeal. This argument cannot possibly succeed, and in my opinion, I find that to be a compelling reason to not hear this argument.

The 'I actually complied with the Direction' Argument

• [25] In the Appeal Notice, the Appellant argues that she in fact did comply with the Directions because she did not enter a high-risk setting while unvaccinated. This argument is misconceived for two reasons. First, it is yet another challenge to the earlier decision finding that the Appellant failed to comply with the Directions without a reasonable excuse. Such a challenge cannot form part of this appeal. Second, the argument is fundamentally flawed. That is because the Directions did not just direct unvaccinated workers to refrain from entering a high-risk setting. Properly construed, the Directions required vaccinations by certain dates (unless exempt), production of proof of such a status, and until such was done, refrain from entering a high-risk setting. The Appellant's construction of the Directions is beyond an unnatural stretch to the language. What the Appellant contends is simply not what the Directions said. This argument is without any prospects and should therefore not be heard.

• [26] The Appellant submits that his Honour, Martin SJA, found in Johnston v Carroll,[13] that the Commissioner of Police failed to give proper consideration to human rights before making the relevant directions for COVID-19 vaccination requirements in contravention of s 58(1)(b) of the HR Act and restrained the Commissioner from taking steps with respect to those directions. The Appellant asserts that Martin SJA's finding in Johnston is applicable here because the Queensland Police Service and the Respondent are part of the same government. Consequently, so the argument goes, the Directions are unlawful and so the Respondent should be restrained from pursuing disciplinary proceedings.

• [27] This argument is also misconceived. It is another challenge to the earlier decision finding that the Appellant failed to comply with the Directions without a reasonable excuse. For that reason alone, this argument cannot be heard in this appeal. However, the argument is also misconceived in that it assumes all of the facts in Johnston, which that case turned on, are the same as the present. That is simply not so_._ These are compelling reasons as to why this argument should not be heard in my opinion.

• [28] In the Appellant's response to Ms Crowley's letter dated 1 August 2022, the Appellant sets out some personal circumstances. The Appellant says that she is a single mother and sole income earner for her family, that she does not have a history of discipline and that she has been an industrious teacher. The Appellant reiterates this argument again in her Appeal Notice and her submissions and argues that the Respondent did not consider this point when making the Decision. The Respondent argues that it was inevitable that the Appellant would be sanctioned for not complying with the Directions and that solely imposing a reprimand would not adequately reflect the Appellant's insubordination.[14]

• [29] As the Respondent noted in its submissions, in Bakhash Dwyer IC found that a teacher's failure to comply with the Directions without a reasonable excuse was a serious act of insubordination that would justify termination of employment.[15] That is an apt assessment of the current case in my view. The Appellant's failure to comply with the Directions without reasonable excuse was a serious act of insubordination. It was carried out by the Appellant in the midst of a global pandemic of a highly infectious and potentially deadly disease. In a vast number of cases, this Commission numerously upheld decisions imposing the penalty that the Appellant would seek to disturb in this appeal. This argument is entirely devoid of prospects in my view. It should not be heard.

• [30] The Appellant argues that she had a temporary medical exemption for half of the time that the vaccination requirements were in place. The Respondent accepts this but argues that the Appellant did not have an explanation for why she was not vaccinated for the other half of the time those requirements were in place. Again, this argument by the Appellant is misconceived as it challenges the earlier decision which found the Appellant failed to comply with the Directions without a reasonable excuse. That cannot form part of the appeal of the Decision. Even if it could, I accept the Respondent's submissions on this point. The lack of explanation as to why the Appellant was not vaccinated while the vaccination requirements were in place obviously left it open to the Respondent to conclude that there was no reasonable explanation for failing to comply with the Directions.

• [31] The Appellant also challenges the Decision on the basis that the vaccine mandate finished on 30 June 2022. The Appellant, however, does not expand on this point but seems to suggest that it is unfair to be disciplined for breaching a mandate that is no longer in force. Once again, this argument is misconceived. First, because it challenges the earlier decision finding that the Appellant failed to comply with the Directions without a reasonable excuse. That is not a decision that can be heard as part of this appeal. Second, this argument is also misconceived because it is irrelevant that the mandate eventually ceased operating. That is because the Directions have been held by the Commission to have been lawful and reasonable as discussed above. For these reasons, this argument should not be heard.

• [32] The Appellant further argues that the Decision is not consistent with other Queensland government departments who have not pursued disciplinary action. This argument is also misconceived. It is predicated on the notion that all government departments should apply the same decision as to discipline in every case of a failure to comply with a direction without a reasonable excuse. That is plainly wrong. Each case, as the Appellant herself has argued earlier in this appeal, should be considered on its own merits. This argument is therefore without weight.

• [33] The arguments that the Appellant has advanced in this matter are either misconceived, outside the scope of this appeal or devoid of any prospects due to the weight of precedent. Many of the arguments suffer from more than one of these afflictions. For that reason I conclude that this appeal enlivens the discretion under s 562A(3) of the IR Act and that the discretion should be exercised in the form of an order that the appeal should not be heard. I order accordingly.

[1] [2022] QIRC 16 ('Colebourne').

[3] [2024] QIRC 287, [79]-[80] ('Patterson').

[4] Industrial Relations Act 2016 (Qld) s 564(3)(d).

[5] Thorley v State of Queensland (Department of Education) [2022] QIRC 133; Schimke v State of Queensland (Department of Education) [2022] QIRC 136; Allison v State of Queensland (Department of Education) [2022] QIRC 152; Nicholas v State of Queensland (Department of Education) [2022] QIRC 157; Tadeo v State of Queensland (Department of Education) [2022] QIRC 177; Carr v State of Queensland (Department of Education) [2022] QIRC 188; Gorry v State of Queensland (Department of Education) [2022] QIRC 196; Tribe v State of Queensland (Department of Education) [2022] QIRC 203; Prentis v State of Queensland (Department of Education) [2022] QIRC 212; Currie (Murray) v State of Queensland (Department of Education) [2022] QIRC 269; Huntington v State of Queensland (Queensland Health) [2022] QIRC 290, [54]; Bakhash v State of Queensland (Department of Education) [2022] QIRC 362, [27] ('Bakhash').

[6] [2023] QIRC 199 ('Nuske').

[7] Ibid [49], [77]-[78], [89]-[92].

[8] [2023] QIRC 58, [111] ('Mocnik').

[9] [2023] QIRC 78 ('Sainty').

[11] Ibid [18]; see also Mackenzie v State of Queensland (Queensland Health) [2023] QIRC 121, [52].

[12] Sturgess v State of Queensland (Department of Education) [2024] QIRC 236, [41]-[42] ('Sturgess'), citing Mocnik (n 8) [54]-[76].

[13] [2024] QSC 2; (2024) 329 IR 365 ('Johnston').

[14] State of Queensland (Department of Education), 'Written submissions addressing why the Commission should decide not to hear the appeal pursuant to s 562A(3) of the Industrial Relations Act 2016562A(3)', Submission in Dau v State of Queensland (Department of Education), PSA/2022/821, 10 May 2024, [20], citing Bakhash (n 5) [27].