Saba v State of Queensland

Public Service Act 2008 ch 7

Allison v State of Queensland (Department of Education) [2022] WIRC 152

Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541

Brodie-Hanns v MTV Publishing Limited (1995) 67 IR 298

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

Chapman v State of Queensland [2003] QCA 172

Cullen v State of Queensland (Queensland Health) [2021] QIRC 258

Currie (Murray) v State of Queensland (Department of Education) [2022] QIRC 269

Foundajis v Bailey [2007] QIC 8

Gorry v State of Queensland (Department of Education) [2022] QIRC 196

Hunter Valley Developments Pty Ltd v Cohen (1994) 3 FCR 344

Maller v Suncorp Metway QIDC Staff Pty Ltd (No. B1479 of 1999)

Nicholas v State of Queensland (Department of Education) [2022] QIRC 157

Prentis v State of Queensland (Department of Education) [2022] QIRC 212

Schimke v State of Queensland (Department of Education) [2022] QIRC 136

Tadeo v State of Queensland (Department of Education) [2022] QIRC 177

Thorley v State of Queensland (Department of Education) [2022] QIRC 133

Tribe v State of Queensland (Department of Education) [2022] QIRC 203

• [1] Mr Morise Saba (the Appellant) is employed by the State of Queensland (Department of Education) (the Respondent) as a Teacher at Cleveland Education and Training Centre.

• [2] On 10 January 2022, Ms Genevieve Gillies-Day, Executive Director, Department of Education, wrote to Mr Saba advising that he was suspended without remuneration for failing to comply with the Department of Education Employment Direction 1/21. The Direction required that the Appellant receive the first dose of a COVID-19 vaccine by 17 December 2021 and provide evidence of this to the Department by 8 January 2022.

• [3] In Ms Gillies-Day's correspondence, she advised the Appellant that his suspension would take effect from 20 January 2022 and, at that stage, would remain in place until 20 April 2022. The Appellant was given seven days to show cause why the suspension without pay should not continue.

• [4] Mr Saba provided a response to the show cause letter by email on 17 January 2022. While a copy of the Appellant's response is not before me, the Respondent submits that Mr Saba's email highlighted concerns about informed consent, questioned the constitutional validity of vaccination mandates, and noted adverse impacts of COVID-19 vaccines reported in the media.[1]

• [5] On 27 January 2022, Mr Tim Gall, Executive Director, Department of Education, wrote to the Appellant to advise that after consideration of his show cause response, his suspension would continue without remuneration.

• [6] On 24 August 2022, Mr Saba lodged an appeal against the decision of 27 January 2022 to suspend him without pay. The reason provided by Mr Saba in applying for an extension of time to lodge his Appeal Notice outside of the 21-day appeal period was:

Being a new employee of the department I am unaware of the processes and procedures that are in place.

Also, the date of enforcement of the start of the suspension date is ambiguous. Therefore I will refer to the date to which the COVID vaccination mandate was put in place - 17/12/2021.[2]

• [7] On 26 August 2022, I issued directions that the parties file submissions addressing the application for an extension of time to file the appeal.

• [8] A member of the Commission may allow an appeal to be started within a longer period.[3]

• [9] In exercising discretion to extend time to lodge an application or appeal, there are principles that have been used for guidance. Those principles are commonly:

• Special circumstances need not be shown, but an applicant for extension must show an acceptable explanation for the delay and that it is fair and equitable in the circumstances to extend time;

• action taken by the applicant, other than by making an application under the relevant Act, is relevant to the consideration of the question of whether an acceptable explanation for the delay has been furnished;

• any prejudice to the respondent, including any prejudice in defending the proceedings occasioned by the delay, is a material factor militating against the grant of extension;

• the merits of the substantive application are taken into account when considering whether an extension of time should be granted; and

• consideration of fairness as between the applicant and other persons in a like position are relevant to the exercise of discretion.[4]

• [10] The application of statutory time limits was addressed by McHugh J in Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541:

A limitation period should not be seen therefore as an arbitrary cut off point unrelated to the demands of justice or the general welfare of society. It represents the legislature's judgment that the welfare of society is best served by causes of action being litigated within the limitation period, notwithstanding that the enactment of that period may often result in a good cause of action being defeated. Against this background, I do not see any warrant for treating provisions that provide for an extension of time for commencing an action as having a standing equal or greater than those provisions that enact limitation periods. A limitation provision is the general rule; an extension provision is the exception to it.[5]

• [11] The Appellant bears the onus of convincing the Queensland Industrial Relations Commission to depart from the ordinary time limitations and hear the Appeal out of time.[6]

• [12] The Respondent submits that an appeal of the suspension without pay decision is out of time and should not be heard for that reason. Section 564 of the Industrial Relations Act 2016 provides that a person's right to appeal, under Chapter 7 of the Public Service Act 2008 ('the PS Act'), lapses after the 21st day after the decision was given.

• [13] Mr Saba was required to lodge his appeal by 17 February 2022. The appeal was not filed until 24 August 2022 and the appeal is now some six months and seven days out of time.

• [14] The Respondent submits that a delay in and of itself is considered to give rise to a general presumption of prejudice to a respondent.[7] In line with analogous cases, the delay in this matter amounts to a 'substantial'[8] and 'significant'[9] delay.

• [15] The Respondent submits that the 21-day appeal period should stand and that the appeal should be dismissed because it has been brought out of time.

• [16] The Respondent submits that there is an absence of a justifiable explanation of the circumstances that afflicted Mr Saba such that he was prevented from exercising the ability to file the appeal within the statutory time limit.

• [17] With regard to the decision subject of the appeal, the Respondent says that it was reasonably open to it to conclude that Mr Saba receiving normal remuneration during the suspension was not appropriate.[10]

• [18] Mr Saba was directed to file his submissions in reply by 4pm on 9 September 2022. On 13 September 2022, the Registry wrote to Mr Saba asking whether he intended to file submissions. On 15 September 2022, Mr Saba replied stating that his 'last attempt' to file his submissions by email on 9 September 2022 did not seem to go through. On 19 September 2022, Mr Saba sent his response. While the Appellant filed his submissions after the date specified in the Directions Order, the Respondent has not raised an objection to these submissions being accepted for filing. I have decided to consider his submissions.

• [19] Paragraphs 1 to 12 of Mr Saba's submissions take issue with the vaccine mandate, the direction to comply with the mandate and decision-making relating to implementation of the direction to receive the vaccination.

• [20] At paragraph 14 of his submissions, Mr Saba turns to the suspension without pay decision and says that 'the decision to suspend teachers from duty without remuneration was an unfair, unjustified and illogical decision'. Mr Saba goes on to take issue with the content of the show cause letters, state that the government's decision to end the mandate provides 'zero endorsement' to the Department's actions to 'follow through with punitive actions towards teachers'.

• [21] Mr Saba argues that his suspension without remuneration appeal should be heard because he and any others in the public service have been treated unfairly, unjustly and dismissively.

• [22] Mr Saba submits that he does 'not operate under statute law, rather, common law or the law of the land'.[11]

• [23] The remainder of Mr Saba's submissions from paragraphs 19 to 28: again take issue with the direction to be vaccinated; state that the Department of Education has infringed/dishonoured the employment agreement; refers to teacher shortages; says that teachers and other public service officers should not be treated with 'such distain (sic) and ill-regard';[12] says that COVID-19 has not proven to be a significant threat to human health and refers to statistics regarding deaths in Australia in 2020.

• [24] Finally, Mr Saba says 'an extension should be made to progress the appellants (sic) matter, considering all relevant material, to uphold human rights, human dignity and morality.'[13]

Explanation for delay and any action taken by Mr Saba

• [25] The length of the delay is over six months. In the context of a 21-day appeal period, this is a significant delay.

• [26] Mr Saba says that as a new employee, he is unaware of the processes and procedures that are in place. I have reviewed the letter provided to Mr Saba informing him of the decision to suspend him without pay. The letter states, 'Further, I invite you to contact the COVID Compliance Team, by telephone...or email at..., should you have any queries in regard to the content of this letter'. It was open to Mr Saba to seek further information from his employer regarding his options if he was unhappy with the decision. Further to this, it was within Mr Saba's capacity to undertake his own research regarding appeal rights. I do not accept that it was reasonable for Mr Saba to remain passive in the face of a suspension without pay decision until such time as the suspension period had ended and he returned to work. There is no evidence before me that Mr Saba actively sought information about his appeal rights.

• [27] I am not persuaded that only being recently employed by the Department and therefore unaware of his appeal rights in the suspension without pay decision provides a satisfactory explanation as to why Mr Saba's appeal was lodged over six months out of time.

• [28] In circumstances where the suspension without pay left Mr Saba without income for some months, there is the potential for prejudice to be suffered by him if he does not have the opportunity to appeal the decision. However, for the reasons stated below, an appeal against the suspension without pay decision has limited prospects of success.

• [29] I am not satisfied that the potential prejudice to Mr Saba is such it should displace the statutory time limitation for lodging an appeal.

• [30] In Chapman v State of Queensland,[14] de Jersey CJ, White and Atkinson JJ said:

...in determining whether it is proper to grant the extension, it is appropriate to consider the merits of the substantive application...An extension of time will not be granted if the court considers the appeal to be plainly hopeless...[15]

• [31] I have outlined Mr Saba's submissions in this appeal above. They broadly indicate that Mr Saba is opposed to vaccination and believes that the direction was not lawful or moral. Mr Saba also believes that COVID-19 has 'no significant health risk to a large portion of the population'. Mr Saba's views could be described as not only vaccine hesitant, but also simply opposed to vaccination.

• [32] When considering matters similar to Mr Saba's, the Commission has repeatedly found that Direction 1/21 was lawful and reasonable.[16]

• [33] Mr Saba was a person to whom the Directive applied. It appears clear that he had not been granted an exemption from complying with the Direction. Mr Saba did not provide evidence of having complied with the Direction and so it was open to the decision-maker to form a reasonable belief that he was liable for discipline.

• [34] The Commission has found that accommodating employees remotely on a full-time basis for the period of time the Direction remained in place would not have been an appropriate solution nor fair on the employee's colleagues or those to whom they provide services.[17] Numerous decisions of Commission have now established that where a person was required to perform their usual duties in a high-risk setting and did not have an exemption from Direction 1/21, it was reasonable for the employer to determine that it was not an appropriate use of public funds or in the public interest to continue paying the employee.[18] Further to that, it has repeatedly been determined by the Commission that vaccine hesitancy (or opposition to vaccination) does not constitute a reasonable excuse to not follow the lawful direction to be vaccinated.

• [35] I understand that I have not asked the parties for submissions regarding the suspension without pay decision, but I have enough material before me to establish that Mr Saba's appeal against the suspension without pay decision has very limited prospects of success.

• [36] There is nothing in the material before me that establishes that Mr Saba has a satisfactory reason for the very significant delay in lodging his appeal. Further to that, I find that if I were to extend time to allow the lodging of the appeal, the appeal has very limited prospects of success.

• [37] For the forgoing reasons, I am not satisfied that the circumstances warrant the extension of time to allow the appeal to be heard.

• [38] The application for an extension of time to commence the appeal is refused.

[1] Respondent's submissions filed 1 September 2022, [7].

[2] Appeal Notice filed 24 August 2022, 3.

[3] Industrial Relations Act 2016 s 564(2).

[4] Hunter Valley Developments Pty Ltd v Cohen (1994) 3 FCR 344, 348 (Wilcox J); Brodie-Hanns v MTV Publishing Limited (1995) 67 IR 298, 299-300 (Marshall J).

[5] Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541, 553 ('Brisbane South').

[6] Ibid 554; Cullen v State of Queensland (Queensland Health) [2021] QIRC 258, [35].

[8] Foundajis v Bailey [2007] QIC 8.

[9] Maller v Suncorp Metway QIDC Staff Pty Ltd (No. B1479 of 1999).

[10] Respondent's submissions filed 1 September 2022, [15]-[22].

[11] Appellant's submissions filed 19 September 2022, [18].

[14] [2003] QCA 172, [3].

[16] Thorley v State of Queensland (Department of Education) [2022] QIRC 133 ('Thorley'); Schimke v State of Queensland (Department of Education) [2022] QIRC 136 ('Schimke'); Allison v State of Queensland (Department of Education) [2022] WIRC 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.

[18] For example, Thorley (n 16) [85].