Schimke v State of Queensland

Public Service Act 2008 (Qld) s 137, s 187, s 194

Employment Direction 1/21 - COVID-19 Vaccinations, s 3, s 4, s 5, s 8, s 9

Colebourne v State of Queensland (Queensland Police Service) [2022] QIRC 018

Gilmour v Waddell & Ors [2019] QSC 170

Minister for Immigration and Citizenship v Li [2012] HCA 61; (2013) 249 CLR 332

Radev v State of Queensland (Queensland Police Service) [2021] QIRC 414

Tilley v State of Queensland (Queensland Health) [2022] QIRC 002

• [1] Mrs Nicolette Schimke (the Appellant) is employed as a Library/Teacher Aide at Lockyer District High School by the Department of Education, State of Queensland (the Department; the Respondent).[1]

• [2] On 16 December 2021, the Director-General of the Department issued the Department of Education Employment Direction 1/21 - COVID-19 Vaccinations (the Direction).[2]

• [3] Relevantly, s 5 of the Direction mandates:

All Department of Education workers whose role (employed or otherwise) requires any attendance in a high-risk setting must:

1. have received the first dose of a COVID-19 vaccine by 17 December 2021;

1. as soon as reasonably practicable after the first dose of the COVID-19 vaccine and in any event no later than 5pm AEST on 7 January 2022, show evidence of having received the first dose in line with section 6 below;

1. have received the prescribed number of doses of a COVID-19 vaccine by 11:59pm AEST on 23 January 2022; and

1. as soon as reasonably practicable and in any event before attending a high-risk setting on 24 January 2022, show evidence of having received the prescribed number of Covid-19 vaccines in line with section 6 below.

• [4] Section 3 of the Direction prescribes that "high-risk settings" include schools and outdoor education facilities.

• [5] Section 8 of the Direction affords employees the opportunity to apply for an exemption from compliance with the Direction due to medical contraindication or participation in a clinical trial.

• [6] The Appellant did not apply for an exemption.[3]

• [7] Pursuant to s 9 of the Direction, from 17 December 2021, unvaccinated workers without a qualifying exemption must not enter a high-risk setting unless there is an emergency or permission is granted.

• [8] On 10 January 2022, the Respondent advised the Appellant she was suspended on normal remuneration pursuant to s 137(1)(b) of the PS Act and invited the Appellant to show cause within seven days as to why she should not be suspended without remuneration.[4] That advice was contained in correspondence from Ms Genevieve Gillies-Day, Executive Director, People and Corporate Services.[5]

• [9] The Appellant did not respond to the proposed suspension without pay.[6]

• [10] On 21 January 2022, the Respondent advised the Appellant of its decision to suspend her without remuneration effective immediately (the Suspension Decision).[7]

• [11] On 11 February 2022, the Appellant filed an Appeal Notice with the Industrial Registry.

• [12] On p 3 of the Appeal Notice, the Appellant identifies two types of decisions being appealed:

I am appealing a current discipline decision. Date discipline decision takes effect: 21/01/2022

I am appealing a decision about suspension without pay

• [13] The Appellant states the date she received the decision being appealed was 21 January 2022.[8] I have reviewed correspondence dated 21 January 2022 annexed to the Appeal Notice but have been unable to identify any form of disciplinary decision within. Further, the Appellant's submissions pertain specifically to the decision to suspend her without pay and do not shed any light on a "discipline decision".

• [14] It may be the case the Appellant considers a decision to suspend her without pay to be a form of discipline, however it is unclear on the material before me.

• [15] Notwithstanding, s 194(1)(bb) of the PS Act provides that an appeal may be made against a decision to suspend a public service employee without entitlement to normal remuneration under s 137. On that basis, I am satisfied the Suspension Decision is appealable.

• [16] Section 564(3) of the IR Act requires that an appeal be lodged within 21 days after the day the decision appealed against is given. That is the relevant inquiry with respect to timeframes. I note that despite the question posed in the Form 89 - Appeal Notice regarding when the decision was received.

• [17] The Decision was given on 21 January 2022 and the Appeal Notice was filed on 11 February 2022. Therefore, I am satisfied the Appeal Notice was filed by the Appellant within the required timeframe.

• [18] Section 562C of the Industrial Relations Act 2016 (Qld) (the IR Act) prescribes that the Commission may determine to either:

• set the decision aside and return the matter to the decision-maker with a copy of the decision on appeal and any directions considered appropriate; or

• set the decision aside and substitute another decision.

• [19] Section 562B(2)-(3) of the IR Act provides that the appeal is decided by reviewing the decision appealed against "to decide whether the decision appealed against was fair and reasonable".

• [20] The appeal is not conducted by way of re-hearing, but rather involves a review of the decision arrived at by the Respondent and the associated decision-making process.

• [21] Findings made by the Respondent, which are reasonably open to it, should not be disturbed on appeal. Even so, in reviewing the decision appealed against, the Commission may allow other evidence to be taken into account.

• [22] The relevant principles in considering whether a decision is 'unreasonable' were enunciated by Ryan J in Gilmour v Waddell & Ors (emphasis added, citations removed):[9]

The focus of a review of the reasonableness, or unreasonableness, of a decision is on whether the decision is so unreasonable that it lacks intelligent justification in all of the relevant circumstances.

The legal standard of unreasonableness is to be considered by reference to the subject matter, scope and purpose of the statute conferring the power.

A court considering an argument that a decision is unreasonable is not undertaking a merits review. If a decision may be reasonably justified, then it is not an unreasonable decision, even if a reviewing court might disagree with it.

... when something is to be done within the discretion of an authority, it is to be done according to the rules of reason and justice. That is what is meant by 'according to law'. It is to be legal and regular, not vague and fanciful ...

... there is an area within which a decision-maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be applied for that of a decision-maker ...

... it is necessary to look to the scope and purpose of the statute conferring the discretionary power and its real object ... The legal standard of reasonableness must be the standard indicated by the true construction of the statute. It is necessary to construe the statute because the question to which the standard of reasonableness is addressed is whether the statutory power has been abused.

... Unreasonableness is a conclusion which may be applied to a decision which lacks an evidence and intelligible justification.

• [23] I issued a Directions Order on 22 February 2022 inviting the parties to file written submissions.

• [24] Pursuant to s 451(1) of the IR Act, no hearing was conducted in deciding this appeal. The matter was decided on the papers.

• [25] I have carefully considered all submissions and annexed materials but have determined not to approach the writing of this decision by summarising the entirety of those submissions and attachments. My focus is on determining whether the Decision appealed against is fair and reasonable so I will instead refer only to the parties' key positions in my consideration of the appeal.

• [26] Section 137 of the PS Act outlines the circumstances under which a public service employee may be suspended from duty.

• [27] Pursuant to s 137(1)(b) of the PS Act, the chief executive of a department may, by notice, suspend a public service employee from duty if the chief executive reasonably believes "the employee is liable to discipline under a disciplinary law."

• [28] An employee is entitled to normal remuneration during a suspension unless the employee meets the criteria under s 137(4) of the PS Act, namely:

(a) the person is suspended under s 137(1)(b) of the PS Act; 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.

• [29] Pursuant to s 137(9) of the PS Act, in suspending a public service employee, the chief executive must comply with the principles of natural justice, the PS Act and Directive 16/20 Suspension (Directive 16/20).

• [30] Section 187(1)(d) of the PS Act provides that the chief executive may discipline the employee if the chief executive is reasonably satisfied the employee has "contravened, without reasonable excuse, a direction given to the employee as a public service employee by a responsible person".

• [31] On 10 January 2022, the Respondent advised the Appellant of its decision to suspend her on normal remuneration pursuant to s 137(1)(b) of the PS Act and invited the Appellant to show cause within seven days as to why she should not be suspended without remuneration.[10]

• [32] Despite being given the opportunity to show cause, the Appellant did not respond to the proposed suspension without pay.[11]

• [33] On 21 January 2022, Ms Gillies-Day on behalf of the Respondent wrote to the Appellant advising she had determined to suspend the Appellant from duty without remuneration.

• [34] The reasoning for the Suspension Decision can be summarised as follows:

• the Direction has been adopted for the protection of vulnerable persons and where a sudden reduction in available workforce would significantly affect the continuity of education services;

• the Respondent has considered all reasonable alternatives, including alternative duties or adjustments and remains of the view that there is no reasonable alternative role or reasonable adjustments available which appropriately manage the risk that arises due to the Appellant's non-compliance;

• the Respondent is not in receipt of information that the Appellant has applied for or received an approved exemption due to medical contraindication or exceptional circumstances;

• the Appellant has had sufficient time to engage with the requirements of the Direction; and

• given the failure to comply within a reasonable period of time, the engagement and consultation undertaken by the Department, the nature of the discipline to which the Appellant may be liable and the time it may take to conclude the disciplinary process, it is not a responsible or appropriate use of public funds to continue paying the Appellant.[12]

• [35] It appears the Appellant submits the Suspension Decision is unfair and unreasonable because:

• the Appellant has declined to share private medical information;

• the functions of the Appellant's role (including cataloguing, allocating, tracking and repairing resources) can be carried out from home;[13]

• consent is imperative and coercive control is evil;

• bullying tactics have been used against the Appellant and others;

• there is no health and safety reason to civilly conscript staff to get the COVID-19 vaccination; and

• compliance with the Direction is not mandatory because it is unlawful.[14]

• [36] I will now consider each of those matters.

• [37] The Appellant firstly submits it is not fair or reasonable to suspend her without pay because she has declined to share private medical information.[15] This submission is vague and the Appellant did not proceed to elaborate as to what medical information she has and whether that medical information could constitute a medical contraindication. As the Respondent points out, medical information is only required from an employee who applies for an exemption on the basis of a medical contraindication.[16] The Appellant did not apply for an exemption on the basis of a medical contraindication and regardless, I do not find it unfair nor unreasonably intrusive for the Respondent to request evidence before granting an exemption on that basis.

• [38] The Appellant also takes issue with the finding that there were no reasonable, alternative working arrangements available and contends she particularly takes offense to the Respondent's submission that:

While the Department acknowledges that since March 2020, employees have been required to perform the duties remotely during lockdown. However, in the case of a Teacher Aide, it is not possible for an employee to perform all the duties of their role from home. The Department accepted employees may be limited in the duties they could perform from home, but such arrangements were only every (sic) for short periods of time and were due to circumstances outside of the control of the Department and its employees. In the case of Ms Schmike (sic), she is solely responsible for her inability to attend her workplace.[17]

• [39] The Appellant herself notes that her role involves allocating, tracking, cataloguing and repairing resources which would seemingly require hands on interaction with at least some physical resources as well as interaction with colleagues and students. Further, the Respondent notes that at times the Appellant's role requires her to be present in the classroom to assist students and teachers during lessons.[18] Although working remotely has been accommodated for most employees in the past due to lockdown periods etc., it is not reasonable for the Appellant to expect her role could be accommodated remotely on a full-time basis in the long term as an alternative to complying with the Direction. That is not an appropriate solution and is not fair on the Appellant's colleagues and students.

• [40] As I found in Radev, there will inevitably be times where the Appellant is required to attend the school and intermingle with other staff members and students to fulfill her duties.[19] I appreciate the positions of Mr Radev and the Appellant are different but consider that the same principle applies in both circumstances.

• [41] The Direction recognises "that a sudden reduction in available workforce would significantly affect the continuity of education services".[20] In my view, an alternative arrangement is not an operationally feasible option in light of the Appellant's role and is therefore not a reasonable solution.

• [42] In Tilley v State of Queensland (Queensland Health), Industrial Commissioner Hartigan concluded the following:

I am satisfied the Department considered alternative working arrangements for Mr Tilley. I consider that the view formed that there were no alternative working arrangements available for Mr Tilley to perform was a decision open to be made, having regard to the Department's responsibility to manage the risks associated with COVID-19 in the workplace which is frequented by employees, patients and the broader community. [21]

• [43] Similarly, I am satisfied the decision maker considered the possibility of alternative working arrangements. However, in light of the various responsibilities that fall under the Appellant's role, I find that it was fair and reasonable for the Respondent to form the view that there were no alternative working arrangements available having regard to the Department's responsibility to manage the risks associated with COVID-19.

• [44] The Appellant also made submissions with respect to consent, coercive control, bullying tactics, the failure of the COVID-19 vaccination to prevent transmission and the lawfulness of the Direction. Respectfully, those submissions were extremely vague. The Appellant did not elaborate on any of those submissions and therefore the link between her statements and how they render the Suspension Decision not fair or reasonable is unclear.

• [45] Significantly, the Appellant elected not to provide the Respondent with a show cause response. Therefore, the submissions presented during this appeal process were not presented to the Respondent prior to making its Decision. It is therefore difficult for me to accept that the Decision is unfair or unreasonable when the Appellant did not raise any issues when given the opportunity to do so. The Respondent was therefore not given an opportunity to consider the Appellant's concerns as part of the decision-making process and I cannot deem the Decision unfair or unreasonable on that basis.

• [46] Further, the Appellant did not apply for an exemption against the requirements under the Direction. In my view, the lack of communication with respect to a show cause response and the omission of an exemption application supports the Respondent's conclusion that the use of public funds to continue paying the Appellant whilst she is suspended is not appropriate or reasonable in the circumstances.

• [47] Upon review of the material before me, I cannot identify any reason that would give rise to the conclusion that the Respondent has made the Suspension Decision for an improper reason or in bad faith - there is certainly no evidence of bullying.

• [48] In response to the remaining matters, I refer to Tilley v State of Queensland (Queensland Health) in which Industrial Commissioner Hartigan concluded the following:

• [39] The other matters, referred to above, raised by Mr Tilley form the basis of his personal preference not to receive a vaccine. I do not consider the matters relied on by Mr Tilley result in Directive 12/21 being unreasonable. In this regard, cl 6 of Directive 12/21 identifies the risk posed by the virus to staff, patients and the broader community and the Directive is aimed at minimising such a risk. I consider that to be reasonable.

[53] The circumstances of this matter include, Mr Tilley failing to comply with a directive which consequently formed a condition of his employment. Further, Mr Tilley's submission indicates that he does not intend to comply with the condition in the immediate future. Given the nature of the substantiated allegation, I consider that it was available, on the information before the decision maker, to conclude that it was not appropriate for Mr Tilley to receive remuneration during the remainder of the disciplinary process. The Department confirms in its written submissions that Mr Tilley is not precluded from seeking alternative employment with another employer. I am satisfied that in making the decision, the Department has complied with s 137 of the PS Act.[22]

• [49] I similarly conclude that the remaining matters raised by the Appellant evince her personal preference not to receive the COVID-19 vaccination. I do not consider those matters render the Suspension Decision unfair or unreasonable.

• [50] The Appellant's various arguments against the Direction may have been relevant at the stage of considering whether she was eligible for an exemption. However, the Appellant did not apply for an exemption and so at the point this matter came to the decision maker, her consideration turned to whether the Appellant should be suspended without pay.

• [51] The Respondent appropriately considered the high level of risk to the health and wellbeing of students, families, Departmental workers and other key stakeholders who access Lockyer District High School.[23] I accept it was fair and reasonable for the Respondent to balance the Appellant's views against these important factors.

• [52] Although the Appellant did not present any submissions with respect to personal or financial impacts of suspension without pay, the Respondent acknowledged this and reasonably balanced such potential factors against the obligation to ensure the effective, efficient and appropriate use of public resources, including the spending of public funds.[24] That was reasonable in my view.

• [53] The significant number of reasons for why the Appellant takes issue with the Direction indicates that the Appellant does not intend to comply in the immediate future. That factor also suggests it is appropriate to suspend the Appellant without remuneration for the remainder of the disciplinary process.

• [54] For the reasons outlined above, the Appellant has not convinced me that the Suspension Decision is unfair or unreasonable.

• [55] I have considered the Appellant's grounds of appeal and rejected each for the reasons outlined above. Although the following matters were not raised by the Appellant as a specific appeal ground, for completeness I will consider whether the decision maker has complied with the statutory requirements in arriving at the Suspension Decision.

• [56] Section 137(1)(b) of the PS Act permits the chief executive to suspend a public service employee from duty if the chief executive reasonably believes the employee is liable to discipline under a disciplinary law.

• [57] Although the Suspension Decision does not include a disciplinary finding against the Appellant, the Respondent need only have a reasonable belief that the employee is liable to discipline under a disciplinary law. Notably, s 187(1)(d) of the PS Act prescribes grounds for discipline where an employee has "contravened, without reasonable excuse, a direction given to the employee as a public service employee by a responsible person". The Suspension Decision clearly stipulates that although the Appellant was directed to be vaccinated, she did not apply for an exemption and has not received the vaccination.

• [58] In correspondence dated 10 January 2022, Ms Gillies-Day on behalf of the Respondent advised the Appellant, "I am of the reasonable view that you may be liable to discipline under a disciplinary law."[25]

• [59] In my view, the fact that the Appellant had refused and was refusing to comply with the Direction is sufficient to induce in the mind of the decision-maker that there was a reasonable belief that the Appellant was liable to discipline under a disciplinary law.[26]

• [60] Pursuant to s 137(4)(b) of the PS Act, a public service employee is entitled to normal remuneration during a suspension unless the chief executive considers it is not appropriate, having regard to the nature of the discipline to which the chief executive believes the person is liable.

• [61] The decision-maker considered the nature of the discipline to which she believed the Appellant was liable and I am satisfied that was outlined in justification of suspension without pay as follows:

Unless an individual has a diagnosed medical contraindication or other qualifying exceptional circumstance the Direction is a reasonable one.

The information available to me indicates that you may have failed to comply with the direction, and the length of time it may take you to comply with the Direction is outside the department's control.

You have had sufficient time to engage with the requirements of the Direction. The department has engaged with you on a number of occasions about what was required of you to comply with the Direction.

I am not in receipt of any material that indicates that you have been vaccinated. Nor am I in receipt of information that you have applied for or received an approved exemption due to medical contraindication or exceptional circumstances.[27]

• [62] Pursuant to s 137(9)(a) of the PS Act, in suspending a public service employee, the chief executive must comply with the principles of natural justice.

• [63] The correspondence from Ms Gillies-Day dated 10 January 2022 affords the Appellant an opportunity to respond within seven calendar days to the proposed suspension without pay and states that "In accordance with the principles of natural justice, no determination has been made or will be made about whether you will be suspended without pay until you have had an opportunity to formally respond."[28] Ms Gillies-Day also advised that, "If you do not respond within the required timeframe, I will make a decision based on the information currently available to me."[29]

• [64] I find that natural justice was complied with in these circumstances and therefore does not render the Suspension Decision unfair or unreasonable.

• [65] Pursuant to s 137(9)(c) of the PS Act, in suspending a public service employee under this section, the chief executive must comply with Directive 16/20.

• [66] Clause 6 of Directive 16/20 relevantly provides:

6.1 Section 137(4) of the PS Act provides that the chief executive may decide that normal remuneration is not appropriate during a period of suspension where the employee is a public service employee liable to discipline.

6.2 A decision that normal remuneration is not appropriate during the suspension will usually occur after a period of suspension with remuneration but may be made from the start of the suspension.

6.3 In deciding that normal remuneration is not appropriate, the factors the chief executive is to consider include:

(a) the nature of the discipline matter

(b) any factors not within the control of the agency that are preventing the timely conclusion of the discipline process

(c) the public interest of the employee remaining on suspension with remuneration.

• [67] I have already concluded above that the Respondent has considered the nature of the discipline matter. With respect to public interest, the Suspension Notice stipulated:

Given your failure to comply with the Direction, the time you have had to engage with and comply with the Direction, the engagement and consultation undertaken by the department, the nature of the discipline to which you may be liable and the time it may take to conclude the disciplinary process, I have determined it is not a responsible or appropriate use of public funds to allow you to continue to be paid while the process is underway.[30]

• [68] Further, the Respondent's submissions provided:

...while it is acknowledged the suspension without pay will have a financial impact on Ms Schimke, this is only one factor to be considered. This must be balanced against the Department's obligation to ensure the effective, efficient and appropriate use of public resources, including the spending of public funds;[31]

• [69] In light of the above excerpts, I am satisfied the Respondent complied with Directive 16/20.

• [70] For the reasons outlined above, I find the Respondent complied with the statutory requirements and have not identified any element that renders the Suspension Decision anything other than fair and reasonable.

• [71] The Suspension Decision set out evidence in support of the ultimate conclusion to suspend the Appellant without remuneration.

• [72] I am satisfied the Decision included intelligible justification following consideration of relevant matters. The Appellant's non-compliance with the Direction is serious and the evidence supporting the Decision is compelling in my view.

1. Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016, the decision appealed against is confirmed.

[2] Respondent's Submissions, 8 March 2022, 1 [4].

[4] Letter from Ms G. Gillies-Day to Mrs N. Schimke, 10 January 2022.

[6] Respondent's Submissions, 8 March 2022, 3 [17].

[7] Email from Ms G. Gillies-Day to Mrs N. Schimke, 21 January 2022.

[9] [2019] QSC 170, [207]-[210], citing Minister for Immigration and Citizenship v Li [2012] HCA 61; (2013) 249 CLR 332, [63]-[76].

[10] Letter from Ms G. Gillies-Day to Mrs N. Schimke, 10 January 2022.

[11] Respondent's Submissions, 8 March 2022, 3 [17].

[12] Letter from Ms G. Gillies-Day to Mrs N. Schimke, 21 January 2022, 1-2.

[13] Appeal Notice, 11 February 2022, 4.

[14] Appellant's Submissions, 15 March 2022.

[15] Appeal Notice, 11 February 2022, 4.

[16] Respondent's Submissions, 8 March 2022, 3 [23].

[19] [2021] QIRC 414, [54].

[20] Department of Education, Employment Direction 1/21 - COVID-19 Vaccinations, s 3.

[21] [2022] QIRC 002.

[22] [2022] QIRC 002.

[23] Respondent's Submissions, 8 March 2022, 3 [22].

[25] Letter from Ms G. Gillies-Day to Mrs N. Schimke, 10 January 2022.

[26] Colebourne v State of Queensland (Queensland Police Service) [2022] QIRC 018, [28]-[30].

[27] Letter from Ms G. Gillies-Day to Mrs N. Schimke, 21 January 2022, 1-2.

[28] Letter from Ms G. Gillies-Day to Mrs N. Schimke, 10 January 2022, 2.

[30] Letter from Ms G. Gillies-Day to Mrs N. Schimke, 21 January 2022, 2.

[31] Respondent's Submissions, 8 March 2022, 5 [28]e).