Nuske v State of Queensland [2023] QIRC 199 | Case summary

Queensland Industrial Relations Commission|2023-07-12|Before: O'Connor VP

That pursuant to s 562C(1)(a) of the Industrial Relations Act 2016 (Qld), the decision appealed against be confirmed.

PUBLIC SERVICE - EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY - public service appeal - where appeal against a disciplinary decision made pursuant to s 194 of the Public Service Act 2008 (Qld) (the PS Act 2008) - where appellant failed to receive the prescribed doses of a COVID-19 vaccination - where due to the number of public service appeals filed against the respondent common issues were identified in relation to procedural fairness during the disciplinary process - where parties agreed preliminary questions be determined prior to the substantive hearing - where decision communicated to appellant and others via a 'mail merge' or similar mass communication technology - whether individual issues/circumstances raised by appellant appropriately considered or given weight in making the decision pursuant to clause 8.6 of Public Service Commission discipline directive 14/20 - whether the decision maker breached s 190 of the PS Act 2008 - whether decision‑maker complied with the directive or the principles of natural justice - determined the individual issues/circumstances raised by the appellant were appropriately considered and given weight by the decision-maker - determined the decision-maker complied with the requirements of s 190 of the PS Act 2008 - decision fair and reasonable - appeal confirmed.

Public Service Act 2008 (Qld), s 3, s 187, s 188, s 190, s 194

Public Service Commission Discipline Directive 14/20

Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 356; (1993) 43 FCR 280

Gilmour v Waddell & Ors [2019] QSC 170

King-Koi v Queensland (Department of Education) [2020] QIRC 209

Minister for Immigration and Border Protection v WZARH (2015) 90 ALJR 25; [2015] HCA 40

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

Re Minister for Immigration and Multicultural Affairs, Ex parte Lam [2003] HCA 6; (2002) 214 CLR 1

Page v John Thompson and Lesley Dwyer, As Chief Executive Officer, West Moreton Hospital and Health Service [2014] QSC 252

Politis v Commissioner of Taxation (Cth) (1988) 16 ALD 707

Weissensteiner v The Queen [1993] HCA 65; (1993) 178 CLR 217

Wirth v Mackay Hospital and Health Service & Anor [2016] QSC 39

Mr C. Dekker, the Teachers' Professional Association of Queensland for the Appellant.

Mr L. Grant, Counsel instructed by Ms N. Smith, Crown Law for the Respondent.

[1] On 8 September 2022 Mr Mark Nuske ('the Appellant') filed an appeal in the Queensland Industrial Relations Commission ('the Commission') against the State of Queensland (Department of Education) ('the Department') pursuant to s 194 of the Public Service Act 2008 (Qld) ('the PS Act 2008').[1] This appeal has been made in relation to the disciplinary action decision taken by Ms Anne Crowley, Assistant Director-General and Chief People Officer of the Department on 22 August 2022.

[2] The Appellant is permanently employed by the Department as an Experienced Senior Teacher (Maths/Science) at North Lakes State College.

[3] At a Mention on 4 October 2022 the Appellant's representative indicated that due to the number of public service appeals filed, common issues in relation to procedural fairness during the disciplinary process had been identified. Following discussion, the parties agreed to provide questions to be determined by the Commission.

[4] At a further Mention on 14 October 2022 the Commission issued directions for the following preliminary Procedural Fairness Questions to be determined prior to the substantive hearing of this matter where the decision of 22 August 2022 was communicated to the Appellant via a 'mail merge' or similar mass communication technology:

(1) Does this demonstrate that the individual issues/circumstances raised by the Appellant were not appropriately considered or given weight in making the decision, pursuant to cl 8.6 of Directive 14/20: Discipline?[2]

(2) Did the decision maker breach s 190 of the Public Service Act 2008 (Qld) in not complying with that Act. Specifically that the decision maker did not comply with the Public Service Commission directive, or the principles of natural justice?

(3) If the answer to any of the above questions is 'Yes', was it to such an extent that the decision being appealed should be:

Set aside and substituted with another decision; or
Returned to the decision maker with a copy of the decision on appeal and any directions considered appropriate.[3]

[5] The Procedural Fairness Questions issue was heard on 3 April 2023. The Appellant did not call any evidence and relied on his written submissions filed on 15 November 2022 and his reply submissions filed on 6 January 2023 as well as his oral submissions at the conclusion of the hearing.[4]

[6] It was conceded by the Appellant at the hearing that no challenge is raised in respect of the first decision, namely, the disciplinary findings decision.[5]

[7] Section 187 of the PS Act 2008 provides for the grounds for discipline as follows:

(1) A public service employee's chief executive may discipline the employee if the chief executive is reasonably satisfied the employee has -

(a) engaged in repeated unsatisfactory performance or serious under performance of the employee's duties, including, for example, by performing duties carelessly, incompetently or inefficiently; or

(b) been guilty of misconduct; or

(c) been absent from duty without approved leave and without reasonable excuse; or

(d) contravened, without reasonable excuse, a direction given to the employee as a public service employee by a responsible person; or

(e) used, without reasonable excuse, a substance to an extent that has adversely affected the competent performance of the employee's duties; or

(ea) contravened, without reasonable excuse, a requirement of the chief executive under section 179A (1) in relation to the employee's appointment, secondment or employment by, in response to the requirement -

(i) failing to disclose a serious disciplinary action; or

(f) contravened, without reasonable excuse, a provision of this Act; or

(g) contravened, without reasonable excuse, a relevant standard of conduct in a way that is sufficiently serious to warrant disciplinary action.

(2) A disciplinary ground arises when the act or omission constituting the ground is done or made.

(3) Also, a chief executive may discipline, on the same grounds mentioned in subsection (1)-

(a) a public service employee under section 187A; or

(b) a former public service employee under section 188A .

(a) inappropriate or improper conduct in an official capacity; or

(b) inappropriate or improper conduct in a private capacity that reflects seriously and adversely on the public service.

victimising another public service employee in the course of the other employee's employment in the public service

relevant standard of conduct, for a public service employee, means -

(a) a standard of conduct applying to the employee under an approved code of conduct under the Public Sector Ethics Act 1994; or

(b) a standard of conduct, if any, applying to the employee under an approved standard of practice under the Public Sector Ethics Act 1994.

responsible person, for a direction, means a person with authority to give the direction, whether the authority derives from this Act or otherwise.

[8] Section 188 of the PS Act 2008 identifies the disciplinary action that may be taken against a public service employee as follows:

188 Disciplinary action that may be taken against a public service employee

(1) In disciplining a public service employee, the employee's chief executive may take the action, or order the action be taken, (disciplinary action) that the chief executive considers reasonable in the circumstances.

termination of employment
reduction of classification level and a consequential change of duties
transfer or redeployment to other public service employment
forfeiture or deferment of a remuneration increment or increase
reduction of remuneration level
imposition of a monetary penalty
if a penalty is imposed, a direction that the amount of the penalty be deducted from the employee's periodic remuneration payments
a reprimand

(2) If the disciplinary action is taken following an agreement under section 187A (4) between the previous chief executive and the current chief executive mentioned in the section, the chief executives must agree on the disciplinary action.

(3) However, a monetary penalty cannot be more than the total of 2 of the employee's periodic remuneration payments.

(4) Also, an amount directed to be deducted from any particular periodic remuneration payment of the employee -

(a) must not be more than half of the amount payable to or for the employee in relation to the payment; and

(b) must not reduce the amount of salary payable to the employee in relation to the period to less than -

(i) if the employee has a dependant - the guaranteed minimum wage for each week of the period; or

(ii) otherwise - two-thirds of the guaranteed minimum wage for each week of the period.

(5) In acting under subsection (1), the chief executive must comply with this Act and any relevant directive of the commission chief executive.

(6) An order under subsection (1) is binding on anyone affected by it.

In disciplining a public employee or former public service employee, a chief executive must comply with this Act, any relevant directive of the commission chief executive, and the principles of natural justice.

[10] Section 194 of the PS Act 2008 relevantly identifies the decisions against which appeals may be made as follows:

Decisions against which appeals may be made

(1) An appeal may be made against the following decisions -

(b) a decision under a disciplinary law to discipline -

(i) a person (other than by termination of employment), including the action taken in disciplining the person; or

[11] Section 562C of the Industial Relations Act 2016 ('the IR Act') provides as follows:

562C Public service appeals - decision on appeal

(1) In deciding a public service appeal, the commission may -

(a) confirm the decision appealed against; or

(b) for an appeal against a promotion decision -set the decision aside, and return the matter to the decision maker with a copy of the decision on appeal and any directions permitted under a directive made by the Public Sector Commissioner that the commission considers appropriate; or

(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.

(2) In deciding an appeal against a promotion decision, the commission may set the decision aside only if the commission finds that the recruitment or selection process was deficient, having regard to whether the process complied with the Public Sector Act 2022, a regulation or a directive made by the Public Sector Commissioner under that Act.

[12] Directive 14/20: Discipline ('Discipline Directive') came into effect on 25 September 2020. The purpose of the Discipline Directive, amongst other things, was to outline the process for managing disciplinary action under the PS Act 2008.

[13] Clause 8.3 of the Discipline Directive relevantly provides the process that must be followed in commencing a show cause process for a disciplinary finding as follows:

(a) The chief executive is to provide the employee with written details of each allegation and invite the employee to show cause why a disciplinary finding should not be made in relation to each allegation (a show cause notice on disciplinary finding):

(b) Written details of each allegation in clause 8.3(a) must include:

(i) the allegation

(ii) the particulars of the facts considered by the chief executive for the allegation

(iii) the disciplinary ground under section 187 of the PS Act that applies to the allegation.

(c) A copy of all evidence relevant to the facts considered by the chief executive for each allegation in clause 8.3(a) must be provided to the employee, including, where relevant, specific reference to page or paragraph numbers that comprise the relevant evidence.

(d) The chief executive must provide the employee with a minimum of 14 days from the date of receipt of a show cause notice on disciplinary finding to consider and respond to the notice, having regard to the volume of material and complexity of the matter. The chief executive may grant, and must consider any request for, an extension of time to respond to a show cause notice on disciplinary finding if there are reasonable grounds for extension.

(e) If the employee does not respond to a show cause notice on disciplinary finding, or does not respond within the nominated timeframe in clause 8.3(d) and has not been granted an extension of time to respond, the chief executive may make a decision on grounds based on the information available to them.

[14] Clause 8.4 of the Discipline Directive provides for a decision on grounds as follows:

(a) A chief executive must review all relevant material, including any submissions from the employee, and make a decision on the disciplinary finding on the balance of probabilities.

(b) The chief executive must advise the employee of the chief executive's finding in relation to each allegation included in the show cause notice on disciplinary finding.

(c) For each finding in clause 8.4(a) the chief executive must clearly explain their finding of fact on the balance of probabilities, including the evidence relied on to reach the finding, and state if the disciplinary ground to which the allegation was applied has been established.

(d) The employee is to be informed of the finding and explanation of the finding in writing, including information that the employee may appeal the disciplinary finding.

(e) If the chief executive determines that discipline ground/s have been established, the chief executive may consider whether disciplinary action should be proposed (clause 8.5) and/or management action implemented, or to take no further action.

If the chief executive determines that no ground/s for discipline have been established, the chief executive may consider whether any management action is required and advise the employee in writing.

[15] Clause 8.5 (d) of the Discipline Directive sets out the factors the chief executive should consider when proposing appropriate and proportionate disciplinary action. The considerations are as follows:

8.5 Show cause process for proposed disciplinary action

(d) In proposing appropriate and proportionate disciplinary action, the chief executive should consider:

(i) the seriousness of the disciplinary finding

(ii) the employee's classification level and/or expected level of awareness about their performance or conduct obligations

(iii) whether extenuating or mitigating circumstances applied to the employee's actions

(iv) the employee's overall work record including previous management interventions and/or disciplinary proceedings

(v) the employee's explanation (if any)

(vi) the degree of risk to the health and safety of employees, customers and members of the public

(vii) the impact on the employee's ability to perform the duties of their position

(viii) the employee's potential for modified behaviour in the work unit or elsewhere

(ix) the impact a financial penalty may have on the employee

(x) the cumulative impact that a reduction in classification and/or pay-point may have on the employee

(xi) the likely impact the disciplinary action will have on public and customer confidence in the unit/agency and its proportionality to the gravity of the disciplinary finding.

[16] Clause 8.6 of the Discipline Directive relevantly provides as follows:

(a) A chief executive must review all relevant material, including any submissions from the employee in response to a show cause notice, and make a final decision on the disciplinary action to be taken.

(b) The chief executive must inform the employee of the decision in writing, including:

(i) the reasons for the decision, including consideration of any information provided by the employee in response to a show cause notice

(ii) excluding a termination decision, information that the employee may appeal the decision on disciplinary action

(iii) for a termination decision, information that the employee may lodge an application for reinstatement under the Industrial Relations Act 2016.

(c) A chief executive may decide to impose disciplinary action different to the disciplinary action proposed in the show cause notice on disciplinary action, provided that:

(i) the revised disciplinary action is objectively less onerous than the original action proposed, or

(ii) the employee is given a further opportunity to comment on the appropriateness of the new proposed action, before a final decision on the disciplinary action is made and communicated to the employee, or

(iii) the employee has suggested the disciplinary action as an appropriate alternative penalty.

(d) Disciplinary action (other than a termination decision) is not to be implemented until the period for an appeal against the decision to discipline the public service employee has expired or any appeal lodged is finalised.

[17] On 11 December 2021, the Chief Health Officer ('CHO') issued the COVID-19 Vaccination Requirements for Workers in high-risk setting ('the CHO Direction') following which the Director-General of the Department issued on 16 December 2021 the Employment Direction 1/21 - COVID-19 Vaccinations ('Direction 1/21'). On 10 March 2022 Employment Direction 1/22 - COVID-19 Vaccinations ('Direction 1/22') followed closely Direction 1/21 and the requirements of the CHO's updated COVID-19 Vaccination Requirements for Workers in a high-risk setting Direction (No 2) of 4 February 2022.[6]

[18] Clause 5 of Direction 1/22 required all departmental workers whose role required attendance in a high-risk setting to have received the prescribed number of doses of a COVID-19 vaccine by 23 January 2022 and provide evidence by 24 January 2022. Clause 6 of Direction 1/22 set out the types of acceptable evidence of having received a COVID-19 vaccine.

[19] As the Appellant failed to receive the prescribed number of doses of the vaccination, on 10 June 2022 he was advised that potential disciplinary findings may be made against him in relation to the following allegation:

You have contravened, without reasonable cause, Clause 5 of the Direction (Employment Direction 1/22 - COVID-19 Vaccinations), by failing to receive the prescribed doses of a COVID‑19 vaccine and/or show evidence of having received the prescribed doses of a COVID-19 vaccine in line with Clause 6 of the Direction.

[20] The Appellant responded on 23 June 2022 with numerous requests, including that the Department provide further data in relation to the COVID-19 vaccines.

[21] After considering the Appellant's response for non-compliance, Ms Crowley determined that none of the reasons provided amounted to a 'reasonable excuse' and on 1 August 2022 Ms Crowley advised the Appellant she found the allegation was substantiated. In light of the disciplinary finding, Ms Crowley provided the Appellant with seven days to show cause why the following disciplinary action should not be taken:

A reduction in remuneration, from Experienced Senior Teacher to Senior Teacher, for a period of 20 weeks at which time you will automatically revert to your previous increment, and a reprimand.

[22] On 8 August 2022, the Appellant responded to the effect he was contemplating a human rights complaint; questioned the lawfulness of the Direction 1/22 in relation to 'experimental' COVID-19 vaccines; argued it would not be in the public interest to punish him and noted that Direction 1/22 was no longer in effect.

[23] Following consideration of the Appellant's response, Ms Crowley advised the Appellant on 22 August 2022 of her determination to apply the proposed disciplinary action with a reduction in the penalty to 18 weeks and a reprimand.

[24] It is not in contention that the disciplinary process under the PS Act 2008 commences by issuing a show cause letter to the employee and concludes by notifying the employee of the decision made. The disciplinary process contemplates two decisions: first a decision on whether the allegation that the employee breached s 187 of the PS Act 2008 has been established; and second a decision on the disciplinary action which is appropriate in consequence thereof.

[25] If the decision-maker reaches a decision that an allegation had been established, the decision-maker would determine a proposed disciplinary action and provide the employee with an opportunity to make submissions in relation to that proposal.

[26] The Appellant was one of approximately 1000 employees of the Respondent requested by Ms Crowley to show cause why the proposed disciplinary action should not be taken against them for non-compliance with Direction 1/22.

[27] Due to the scale and complexity of considering over 1000 matters, the Respondent took a number of steps to ensure that appropriate consideration was given to the responses and other relevant matters for each employee.[7]

[28] In evidence, Ms Crowley said she was taken offline for a full two weeks to focus on this work.[8] In her affidavit Ms Crowley said from 4 July until 18 July 2022 she reviewed the individual responses and other relevant material provided by each employee with respect to the Allegation including the Appellant's Disciplinary Findings Response.[9]

[29] Between 11 and 18 August 2022, Ms Crowley reviewed the relevant material for 965 of the Subject Employees including any responses provided to the Proposed Disciplinary action. Of this cohort, 651 provided a response to the proposed disciplinary action.[10] Approximately 242 were templated responses prepared by the Teachers' Professional Association of Queensland/Red Union Support Hub ('Red Union') with limited customisation. A further 41 responses utilised a template from the Red Union with no personal information or customisation of the template.[11] A number of employees did not respond.[12]

[30] Ms Crowley was assigned an assistant, who in accordance with her instructions, conducted further assessments and made additional inquiries in relation to further information sought by her (e.g. leave dates, incumbencies, medical documentation, etc.) then reported back to her so that she could consider any further information prior to making a decision.[13]

[31] The disciplinary action decision letter of 22 August 2022 was based upon a template used for Subject Employees who had similar traits:

the Subject Employee provided a response to the show cause for disciplinary action;
the response included submissions more relevant for the decision on disciplinary findings;
the Subject Employee had a period of suspension without remuneration; and
having considered the response, Ms Crowley nevertheless determined that it was appropriate to take the Proposed Disciplinary Action.[14]

[32] Ms Crowley considered individually each Subject Employee before making a disciplinary action decision.

[33] The disciplinary action decision letter was communicated to the Appellant via a software platform whereby the Department can accurately deliver and monitor a significant number of emails to staff.

[34] The Appellant did not give any evidence on his own behalf nor was any evidence adduced by the Appellant in support of his claim.

[35] The Respondent called Ms Anne Crowley, the decision-maker whose position at the time was Assistant Director-General, Human Resources, Department of Education.[15]

Does the process utilised in the 22 August 2022 decision demonstrate that the individual issues/circumstances raised by the Appellant were not appropriately considered or given weight in making the decision, pursuant to cl 8.6 of the Directive 14/20: Discipline

[37] In relation to the first of the common issues questions, the Appellant claims that the individual issues or circumstances raised by the Appellant were not appropriately considered or given weight in terms of Clause 8.6 of the Discipline Directive 14/20.

[38] The Appellant submits that the decision-maker did not review all relevant material, nor did she provide consideration of any information provided by the Appellant, chiefly for four reasons:

the sheer volume of disciplinary matters delivered simultaneously within a short timeframe;

the lack of differentiating features between the 'Reasons for decision' that the Appellant received, and other employees who were affected;

identical punishments received by staff that were later retracted; and

the Appellant's mitigating circumstances were not considered.[16]

[39] The Appellant refers to what was described as inconsistencies in evidence; a deficiency in how so many matters could be decided by one decision-maker; the lack of differentiating features between the reasons for those decisions; the identical punishments received by staff regardless of mitigating factors and that these matters needed to be treated as individual decisions rather than as a broad collective group.[17]

[40] In the letter of 22 August 2022, Ms Crowley set out the basis upon which she imposed disciplinary action on the Appellant. She wrote:

In reaching my decision on the disciplinary action to be taken, I have had regard to the following:

The disciplinary finding against you is serious. It is reasonable for the department, as your employer, to expect that you comply with lawful and reasonable directions. Such an expectation is fundamental to the employment relationship, and your failure to comply is damaging to the trust and confidence placed in you.

As a public servant, you are in a position of privilege and trust; and there is a reasonable public and employer expectation that you comply with the directions arising in response to a serious public health matter. Employment Direction 1/22 - Covid 19 Vaccinations (Direction) was issued as part of the department's response to the public health order, declaring a public health emergency.

The department reasonably expected that you were aware of your obligations to comply with the Direction, as it had been extensively communicated to employees from the time the Direction was announced.

While I note your submissions, I am satisfied that you have been provided an explanation, or information regarding extenuating or mitigating circumstances that leads me to believe that the disciplinary action is unreasonable in the circumstances.

Your conduct in failing to comply with the Direction posed a risk to the health and safety of your co-workers, students and members of the public, which was mitigated only by the steps taken by the department to suspend you from duty.

The disciplinary action reflects the seriousness of the matter, but as you remain an employee of the department, affords you the opportunity to continue to perform your duties, and display modified behaviour, by complying with directions in the future.

I acknowledge that the disciplinary action will have a financial impact on you. However, I consider that the seriousness of the disciplinary action and its impact on you is proportionate to the seriousness of your conduct.

I acknowledge that the implementation of the Direction, and its resultant impact may have been a difficult period for you. I acknowledge the personal impact these processes can have on employees; however, I remain of the view that disciplinary action is appropriate in circumstances where I have found that you have breached the Direction.

I note that you were suspended without pay for a period of time while the Direction was in place. For clarity, suspension and suspension without remuneration are not disciplinary action pursuant to section 188 of the Act. While I have noted that you were suspended without remuneration and accept that this would likely have had a financial impact on you, I remain of the view that the disciplinary action is reasonable and proportionate to your conduct in this matter.

I do not consider that there is any other disciplinary action which adequately reflects the seriousness with which I view your conduct in this matter.

Accordingly, I have determined to impose the following disciplinary action under section 188(1) of the Act:

A reduction in remuneration, from Experienced Senior Teacher to Senior Teacher, for the period of 18 weeks, at which time you will automatically revert to your previous increment, and a reprimand.[18]

[41] As to the reasoning behind the imposition of the disciplinary penalty, Ms Crowley's evidence was:

Once I'd determined to provide a disciplinary penalty in an individual case, I made the judgment call and - I mean, you've got to - you've got to bear in mind there's no precedent for this. So, basically, using the best judgment I could to come up with something that seemed fair and reasonable that reflected the - the importance and significance of wilfully breaching a directive, while also recognising this whole thing was so unheard of.

And one that would apply to everyone?--- Mmm.[19]

Speaking of that, Ms Crowley, the - where you decided to discipline employees throughout this process, is it correct that the disciplinary penalty was, in every case, 18 weeks reduction in pay or classification down one pay point and a reprimand?

That was the final outcome for all the people that I continued to go through the process of disciplining. There were people through - working through the whole process, looking at their material, looking at their circumstances, it was possible to determine that they hadn't - they hadn't breached the directive or they had reasonable grounds for not being vaccinated, for example, people who were on leave, who were overseas for the whole period, and so on. So those people were taken out of the process and not - didn't have a penalty applied. In terms of the others, I thought long and hard about what penalty or penalties to apply, and I - and I read all of the material about people's reasons, things like, you know, fear of the vaccination or belief that it wasn't effective or that nobody has a right to tell me what to do with my body, or I have a religious exemption, or I'm anxious and depressed, or - you know, there were many, sort of, themes that came through, and with the - as I said, that criteria in mind, that it was clear that people had breached the directive and therefore, in my view, a penalty needed to apply. I felt it needed to be stronger than a reprimand because, in my view, a reprimand might be something that you would give to someone who does something serious and needs to be made aware that it's serious and not to do it again, but by mistake rather than deliberate, whereas these were conscious choices. So I went to the next point, which was imposing a penalty, and not going further because I recognised the stress and pressures on people, you know, that were quite common, but, you know, personally different, and I felt it wasn't appropriate or possible for me or fair for me to make a decision that this person who was more articulate in their response and able to be a bit more persuasive about the impact that it had had on them, that I should be more lenient for them than on a different person who may not have been so articulate or so well represented. So I went to that level that I thought was - reflected the importance of the point, without being more onerous on anyone. In terms of choosing the increment, I looked at other things. I - firstly, I looked at doing an average of all increments so that everyone would get the same, but I realised - so the action penalty by increments range between 38 and 155 dollars a fortnight for nine fortnights, whereas when I looked at an average - if I applied the same thing to everyone, that would have been $100 roughly, and that was more onerous for some people, typically people at lower levels, so I threw that out and went with the increment approach, because I thought it was more proportionate to the level of the role which is in here: their classification, experience and so on. So it was a long-thinking process, having read all the material, to work out what I thought was fair and reasonable.[20]

[42] During cross-examination, Ms Crowley agreed the exercise of disciplinary action to be one that is done on an individual basis.[21] In exercising her power under s 187 of the PS Act 2008, Ms Crowley's evidence was: '[m]y understanding is I need to take into account each individual's situation and responses ... I absolutely did look at every individual - both the show cause on discipline and the show cause on penalty'.[22]

[43] During the disciplinary process, there were 71 cases where Ms Crowley determined to revoke the disciplinary finding in circumstances where the Subject Employee had not been required to attend the workplace at the required time due to approved leave or had been exempted from the Direction.[23] The Respondent's case supports the conclusion that Ms Crowley appropriately considered the individual issues before her.

[44] There was a significant degree of similarity in the matters being considered by Ms Crowley, in particular:

(a) it was not in contention that Direction 1/22 was a lawful and reasonable direction of the employer;

(b) Direction 1/22 required an employee to receive a COVID-19 vaccination;

(c) the lack of factual dispute about whether the employee had received a COVID-19 vaccination;

(d) the employees' reasons for not complying with Direction 1/22 shared a high degree of commonality, particularly those employees who submitted templated responses prepared by the Red Union; and

(e) the responses included, inter alia: an alleged failure by the employer to consult; an inability to provide informed consent; concerns regarding vaccine safety and efficacy; the availability of alternatives to vaccination; and a failure to provide a risk assessment for the employee's personal workplace.

[45] Further, in considering whether to undertake disciplinary action under the PS Act 2008, the decision-maker was already well informed by a large body of jurisprudence from the Commission dealing with the issues being advanced in the show cause responses.

Ms Crowley, if I put it to you that the time that you had to assess these responses to the show causes and to read them, rather, and to assess them in line with clauses 8.5 and 8.6 of the directive, I put it to you that you didn't have enough adequate time to do those. Would you agree with that?---

No. I don't agree. I do believe I had enough time because there were certain things that were clear and not in dispute, so I didn't have to look for information to make a judgment. So in all these cases, it was clear and not disputed that the people had breached the directive for mandatory vaccination. Some of these factors weighed into decisions I ultimately made about the disciplinary penalty.[24]

[47] Given the number of employees who chose not to provide a response or a templated response, as well as the limited number of unique matters raised in the responses, it was submitted by the Respondent that Ms Crowley had ample time to consider the relevant information including the responses. I agree.

[48] The disciplinary action decision sets out the reasoning process adopted by the decision‑maker to reach her conclusion. The decision reflects to the extent relevant, the provisions of Directive 14/20 and Clause 8.6.

[49] The evidence before the Commission does not support the contention that the process utilised in the 22 August 2022 decision demonstrates that the relevant material, including the individual issues/circumstances raised by the Appellant, were not appropriately considered or given weight in making the decision, pursuant to Clause 8.6 of the Discipline Directive.

Did the decision maker breach s 190 of the Public Service Act 2008 (Qld) in not complying with that Act. Specifically, that the decision maker did not comply with the Public Service Commission directive, or the principles of natural justice.

[50] The second question concerns a determination whether the decision-maker breached s 190 of the PS Act 2008, but specifically whether the decision-maker failed to comply with Direction 1/22 and the principles of natural justice.[25]

In disciplining a public service employee or former public service employee, a chief executive must comply with this Act, any relevant directive of the commission chief executive, and the principles of natural justice.

[52] In Wirth v Mackay Hospital and Health Service & Anor,[26] Bond J found that:

[20] Section 190 obliges the chief executive to comply with the principles of natural justice "in disciplining [the public servant employee]" or "in ... suspending [the public servant employee]", although an exception exists if the suspension is on full pay.[27]

[22] In my view, where s 190 obliges compliance with the principles of natural justice, the phrase "in disciplining" must be taken to refer not merely to the s 188 process of deciding what particular disciplinary action to impose, but, necessarily, to the antecedent decision by a chief executive whether he or she is reasonably satisfied that particular grounds for discipline exist. The phrase "in disciplining" covers both types of decision. It seems to me that nothing else makes sense. Why would the legislature contemplate that natural justice must be accorded only to what is - in effect - the sentencing decision and not to the antecedent question of guilt or innocence?[28]

[54] In Wirth, Bond J. concluded the following in terms of the application of natural justice:

The result is that I conclude that the chief executive of the Hospital was required to comply with the principles of natural justice in relation to at least these two decisions:

(a) whether, pursuant to s 187(1) of the PS Act, she was reasonably satisfied particular grounds for discipline actually existed in relation to Dr Wirth (this is what I have earlier described as the disciplinary findings decision); and

(b) what particular action to take pursuant to s 188 of the PS Act in respect of the particular grounds for discipline which she had found to exist (this is what I have earlier described as the disciplinary action decision).

A question arises as to what the principles of natural justice would require in relation to those two decisions. In this regard, the law is clear, although its precise application is sometimes difficult.[29]

[55] The question that arises for consideration is the nature and extent of the principles of natural justice which a decision-maker is required to apply in the disciplinary process under the PS Act 2008.

[56] The principles of natural justice are expressed in the well-known case of Kioa v West,[30] where Mason J said:

The expression 'procedural fairness' more aptly conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case. The statutory power must be exercised fairly, i.e., in accordance with procedures that are fair to the individual considered in the light of the statutory requirements, the interests of the individual and the interests and purposes, whether public or private, which the statute seeks to advance or protect or permits to be taken into account as legitimate considerations. (citation omitted)[31]

[57] What can be drawn from Kioa is the conclusion that what is appropriate in terms of the application of natural justice depends on the circumstances of the case. The circumstances may include, amongst other things, the nature of the inquiry, the subject‑matter, and the rules under which the decision-maker is acting. In the present case, a relevant circumstance of the case and relevant to the determination of what is appropriate is the Discipline Directive.

[58] As was observed by Kiefel, Bell and Keane JJ in Minister for Immigration and Border Protection v WZARH,[32] "the real question [is], what is required in order to ensure that the decision is made fairly in the circumstances having regard to the legal framework within which the decision is to be made".

[59] It is not in dispute that the Appellant was afforded the opportunity to respond to both the proposed disciplinary findings and the disciplinary action.[33]

[60] In his response of 8 August 2022 in respect of the disciplinary action, the Appellant rehearsed the arguments previously advanced by him in his reply to the show cause letter of 23 June 2022. His willingness to comply with the Discipline Directive was conditioned on the State of Queensland establishing a Royal Commission. He wrote:

After the government establishes a Royal Commission to investigate these and other concerns, then I will be able to make an informed medical decision as to whether I am going to take the risk of taking an experimental vaccine in order to keep my career as a teacher.[34]

[61] The Appellant suggested that his treatment by the Respondent was '... a form of workplace bullying and harassment and is a violation of my Human Rights'; and had caused him emotional stress and financial hardship.[35]

[62] What was argued by the Appellant was that it was unreasonable to expect him to receive an 'experimental Covid jab' in circumstances where there has been a failure to show due diligence by providing him with:

'... a risk assessment, especially as no medium to long term clinical safety trials have been done to ensure that these covid jabs, that are currently available, will not cause an adverse reaction, permanent injury or death in the long term. (It is not ethical to mandate experimental covid jabs where over 1000 people died from the Pfizer jabs during the initial Pfizer covid jab trials).

It is also not reasonable for you to expect me to take a covid jab that has used baby foetal tissue in its development. (This violates my conscience and moral principles)'.[36]

[63] He further contended that there were available other alternatives to the COVID-19 vaccines which had been clinically proven to greatly reduce the risk of catching the virus and prevent hospitalisation. He asserted, absent any evidence, that studies have shown that the vaccine '...permanently damage people's immune systems. If a person's immune system is permanently damaged, they are more likely to get sick, catch viruses and therefore be more contagious in the future'.[37]

[64] The efficacy of the COVID-19 vaccines was challenged together with its inability to prevent members of the public from contracting or spreading COVID-19; that the vaccine had not prevented hospitalisations but rather had been shown to cause severe adverse reactions, severe permanent injury, and death in many people.

[65] The Appellant raised in his response to the proposed penalty, what may loosely be described as two extenuating circumstances. The first related to an apparent failure by the decision-maker to consider a medical exemption; and the second, related to the Appellant's financial circumstances.

[66] In respect of the medical exemption, it was asserted by the Appellant that it was not reasonable and ethical for the Respondent to ignore his request for a medical exemption. He claimed that his medical exemption was never considered by Ms Crowley in her letter of 22 August 2022.

[67] The Respondent has no record of the Appellant's request of 27 May 2022 for a medical exemption. The records show that the Appellant advised the Department by email on 27 May that he had recently tested positive for COVID-19 via a PCR test and therefore had a 'natural immunity'. The Respondent contends that this is not an application for medical exemption from complying with the requirements of the Discipline Directive which could only be achieved where an employee availed themselves of a medical contraindication certificate issued by the Australian Government.[38]

[68] The Appellant was advised by the Respondent of such a requirement however he did not have his general practitioner complete an Immunisation Medical Exemption form as required and therefore was not in possession of a valid exemption.[39]

[69] Moreover, it was never put to Ms Crowley in cross-examination that she had ignored or otherwise failed to take into account a medical exemption. Indeed, the unchallenged evidence of Ms Crowley was that the Appellant did not have an approved medical exemption for the period in which the Direction was in place.[40]

[70] In respect of the Appellant's financial circumstances, there is no evidence before the Commission in respect of any hardship that would be suffered by the Appellant because of the imposition of the penalty. All that was asserted by the Appellant was contained in his response of 8 August 2022 namely:

A reduction in my remuneration or any other financial penalty ought to be considered extremely harsh, extremely excessive, by the employer.[41]

[71] The penalty imposed by Ms Crowley amounted to a reduction for 18 weeks of one remuneration increment (or equivalent where that was not possible) and a reprimand.

[72] As the following exchange in cross-examination demonstrates, Ms Crowley was cognisant of Clause 8.5(d) of the Discipline Directive which sets out the factors the decision-maker should consider when proposing appropriate and proportionate disciplinary action:

Yes. Do you accept that you proposed and executed disciplinary penalties that would have applied across a broad class of people to whom discipline was an option?---Yes.

Yes. You said earlier in this examination, Ms Crowley, that you understand the exercise of disciplinary action to be one that is done on an individual basis?---Yes.

Do you recall saying that? Why, then, have you just said to me and to this Commission that you planned out a disciplinary outcome that would have been applicable across the broad range of people?---Be - I said - I didn't plan that out. I said I came to that at the end of the process, when thinking through all I'd read, when I'd read all the different submissions for the initial show cause and then the final show cause and thinking about, you know, what penalty/penalties are appropriate to provide, and where I landed was it was the same penalty because fundamentally it was the same breach, but that it was a penalty significant enough to reflect the seriousness of willingly breaching a directive, while at the same time - as I said, the - the actual financial penalty ranged between 38 and 155 dollars a fortnight for nine fortnights. So, given everything, it was a lighter penalty and, therefore, I guess that - that meant that it wasn't necessary to - having reached that conclusion, to then find stronger penalties for different people than that.

Can you please read paragraph 34 of your affidavit, Ms Crowley?---Yes.

So you would agree that your position at the time when assessing these was that the reason that you reduced the penalty to 18 weeks down from 20 weeks originally proposed is that you:

...were confident that there existed strong potential for the subject employees to demonstrate modified behaviour in the future.

?---That was - that was part of why - that was why I landed on that penalty, but why I reduced it by two weeks was because I wanted the penalty to finish by the start of the school term, because I knew what damage this whole thing had done to other teachers. So our - our staff of the department is about 93,000. Eighty-nine-thousand of those work in schools. And this - this was applied to all of those people. And so - and I knew what damage this had done to relationships, to managing school, and to students who'd missed out on their teachers. So part of what I had in my mind in terms of the timing was for people to be able to get back to the start of the school year, fresh start, and focus where it matters.

So you - but you would agree, then, that you believe that in all cases here, that there was strong potential for the subject employees to demonstrate modified behaviour in the future?---Yes, because, to my knowledge, this was the - this was the only breach to date and this was unprecedented. You know, that word's been used so many times in COVID. These are not normally people who would breach a directive, to my knowledge, and - so I felt, unless these unusual circumstances applied again, then they would be expected to return to - to being good teachers or - - -[42]

[73] The Respondent argues that in determining procedural fairness, reference must be had to s 3(1)(a) and (b) of the PS Act 2008 which provides:

(a) establish a high-performing, apolitical public service that is -

Nuske v State of Queensland

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Cases Cited (7)