Smith v State of Queensland

Chen v State of Queensland (Queensland Health) [2022] ICQ 15

Chen v State of Queensland (Queensland Health) [2021] QIRC 369

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

Elliott v State of Queensland (Queensland Health) [2022] QIRC 332

Gilmour v Waddell & Ors [2019] QSC 170

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

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

Venables v State of Queensland (Queensland Health) [2022] QIRC 137

• [1] Mr Matthew Smith (the Appellant) was employed as a Ranger by the State of Queensland (Department of Environment and Science) (the Respondent; the Department).

• [2] On 2 March 2022, Ms Vivienne Van Der Laak, Chief Human Resource Officer issued the Appellant with a notice to show cause as to why a disciplinary finding should not be made against him under s 187(1)(d) of the Public Service Act 2008 (Qld) (the PS Act).

• [3] The Department alleged that the Appellant contravened the direction given to him under the Department's COVID-19 Vaccination Policy and Procedure (the Policy) by failing to provide evidence confirming he had received the required number of doses of an accepted COVID-19 vaccination. The Appellant had been directed to do so under cls 8.1 and 8.2 of the Policy (the Direction).

• [4] The 2 March 2022 correspondence also advised the Appellant that he was suspended with remuneration and issued a notice to show cause as to why he should not be suspended without remuneration.

• [5] On 15 March 2022, the Appellant responded to the notice to show cause with respect to both the discipline and suspension without remuneration matters.

• [6] On 29 March 2022, Ms Van Der Laak wrote to the Appellant advising that:

• the allegation against him had been substantiated and it had been determined that a ground for discipline exists under s 187(1)(d) of the PS Act; and

• the Appellant was suspended without remuneration (the Suspension Decision).

• [7] On 14 April 2022, the Appellant appealed the Suspension Decision to the Commission and I issued a Directions Order requiring written submissions.

• [8] On 24 June 2022, the Department advised that the Appellant's employment had been terminated. The Appellant's employment was terminated because of his failure to be vaccinated. That fact raised the issue of whether this appeal should still be heard in circumstances where the Appellant is no longer a public service employee. On 4 July 2022, I issued a Further Directions Order requiring written submissions from the parties with respect to that issue.

• [9] Section 562A(3)(b)(iii) of the Industrial Relations Act 2016 (the IR Act) provides that the Commission may decide it will not hear a public service appeal against a decision if the Commission reasonably believes, after asking the appellant to establish by oral or written submissions that the appellant has an arguable case for the appeal, that the appeal should not be heard for another compelling reason. I will deal with that issue first.

• [10] Upon consideration of the parties' written submissions, I have decided to hear this appeal in circumstances where the Appellant is no longer an employee of the Department. My reasons follow.

• [11] In Venables v State of Queensland (Queensland Health), Deputy President Merrell found:

• [20] Having considered the submissions of both Ms Venables and the Department, my view is that I should exercise my discretion and not hear Ms Venables' appeal. This is for the compelling reason that given that Ms Venables is no longer an employee, there can be no practical effect from any decision I make in respect of her appeal.

• [21] If I confirmed the decision appealed against, that decision can be of no effect on Ms Venables because her employment has been terminated.

• [22] Similarly, if I set the decision appealed against aside and substituted a new decision, namely, that Ms Venables should have been granted an exemption under the Directive, that decision can have no practical effect on Ms Venables because she is no longer an employee.

• [23] In my view, in general, the Commission's time should only be spent hearing and determining public service appeals where there will be some practical effect upon the employee's continued employment. In Ms Venables' case, any decision I make will have no practical effect on her continued employment.

• [24] This is a compelling reason not to hear Ms Venables' appeal.[1]

• [12] This appeal is distinguishable on the basis that it concerns a suspension without remuneration decision and the practical effect of a decision in favour of the Appellant would be a monetary payout for the period he was suspended without remuneration. Further, the Appellant was a public service employee and filed this appeal in accordance with the PS Act.

• [13] The Department referred to the decision in Chen v State of Queensland (Queensland Health).[2] However, that decision was appealed to the Industrial Court of Queensland where Vice President O'Connor relevantly held that a validly commenced public service appeal does not lapse upon the appellant ceasing to be a public service employee.[3]

• [14] For those reasons, I will proceed to determine the substantive appeal.

• [15] Section 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 Suspension Decision was given on 29 March 2022 and the Appeal Notice was filed on 14 April 2022. Therefore, I am satisfied the appeal was initiated by the Appellant within the required timeframe.

• [18] 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".

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

• [20] Findings made by the decision-maker, which are reasonably open to him or her, 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.

• [21] The relevant principles in considering whether a decision is 'unreasonable' were enunciated by Ryan J in Gilmour v Waddell & Ors (emphasis added, citations removed):[4]

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.

• [22] I issued a Directions Order on 21 April 2022 inviting the parties to file written submissions.

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

• [24] 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 Suspension Decision is fair and reasonable, so I will instead refer only to the parties' key positions in my consideration of the appeal.

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

• [26] 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."

• [27] An employee is entitled to normal remuneration during 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.

• [28] 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).

• [29] 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".

• [30] The Appellant contends the Suspension Decision is not fair or reasonable because:

• he attended work and carried out his normal duties during the pandemic;

• he should not be made to disclose his private medical history;

• Queensland "is opening up" and proof of vaccination status is no longer required;

• other Government departments are no longer requiring that employees be vaccinated against COVID-19;

• people do not need to be vaccinated before entering a National Park in Queensland;

• herd immunity nullifies the reasoning behind the mandate;

• the vaccine does not significantly mitigate infection and transmission;

• the actual risk of death or serious illness from COVID-19 is not significant enough to justify the mandate;

• the long-term risks of the vaccinations are unknown;

• to leave an employee "in work limbo" during the height of the pandemic on suspension without remuneration is unfair; and

• he will continue with protocols that were in place before the mandates were imposed.

• [31] In Elliott v State of Queensland (Queensland Health), Industrial Commissioner Dwyer stated:[5]

[29] The commission has now dealt with a great many appeals of this nature. Consequently, a reliable body of jurisprudence has been developed dealing with increasingly common themes in the arguments advanced by appellants like Ms Elliott, who have not complied with a vaccine mandate applicable in their respective departments of employment.

[30] Notwithstanding that these decisions are available publicly on the Queensland Courts website, appellants continue to file these appeals challenging the validity of directions for them to be vaccinated and relying on arguments such as 'vaccines are not safe' or 'mandates are coercion' or 'human rights infringements' or 'risk assessments were not provided' or 'consultation did not occur' et cetera.

[31] It is more than apparent that the vast majority of such appellants have no regard for the reported decisions or if they do, they simply press on, expecting that somehow the outcome will be different in their case. With the exception of a small number of decisions returned to departments for technical inadequacies, no appellant has succeeded on the increasingly tedious suite of arguments of this nature.[6]

[32] The continued use of the commission's resources to receive and repeatedly dispense with the same arguments cannot be in the public interest. In circumstances where there is now a reliable body of decisions dispensing with similar arguments, it is my view that appellants seeking to reagitate settled arguments should be required to justify why they ought to be heard.

• [32] The Appellant's arguments similarly traverse many of the consistently rejected positions presented in previous matters and so I do not intend to engage in a detailed analysis of each and every argument.

• [33] There is no evidence before me that suggests the Appellant formally applied for an exemption and he certainly was not granted one. At the point in time when the decision-maker turned to consider the issue of suspension without remuneration, the various reasons for why the Appellant had not complied with the Direction were irrelevant.

• [34] The fact is that the Appellant did not comply with the Direction and did not have an exemption. Had the Appellant felt his concerns were substantial enough to apply for and obtain an exemption, he should have formally applied. If his application had been refused, the Appellant could have appealed that refusal. It was not up to the decision-maker in the Suspension Decision to make that determination.

• [35] While it is acknowledged that suspension without pay will financially impact the Appellant, that is but one factor to be considered. I find the decision-maker appropriately balanced those impacts against the Department's obligation to ensure the effective, efficient and appropriate use of public resources and the safety of the community. 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 was appropriate to suspend the Appellant without remuneration for the remainder of the disciplinary process. Further, it is open to the Appellant to seek alternative employment elsewhere.

• [36] The Respondent is not responsible for allaying the Appellant's concerns or doubts about receiving the COVID-19 vaccine and its efficacy. In my view, the omission of an exemption application supports the Respondent's conclusion that the use of public funds to continue paying the Appellant whilst he is suspended is not appropriate or reasonable in the circumstances.

• [37] The Appellant submits it is not fair or reasonable to suspend him without pay because he has declined to share private medical information. This submission is vague and the Appellant did not proceed to elaborate as to what medical information he has and whether that medical information could constitute a medical contraindication. Medical information is only required from an employee who applies for an exemption on the basis of a medical contraindication. 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. Further, if it is the need to disclose vaccination status that the Appellant takes issue with, I find that is yet another factor that illustrates the Appellant's personal preference not to be vaccinated or comply with the Direction. The requirement to disclose vaccination status is not unreasonable in these circumstances and in light of the Policy objectives.

• [38] The Appellant also made submissions with respect to the easing of restrictions, medical privacy, human rights, efficacy, balancing of risk, blackmailing and herd immunity.

• [39] 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.[7]

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

• [41] The Appellant's various arguments against the Direction may have been relevant at the stage of considering whether he 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.

• [42] The Respondent appropriately considered the high level of risk to the health and wellbeing of colleagues and the community. I accept it was fair and reasonable for the Respondent to balance the Appellant's views against these important factors.

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

• [44] 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.

• [45] 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. The decision-maker reached that conclusion in relation to the allegation that:

in contravention of a direction given to you under the department's COVID-19 Vaccination Policy and Procedure, you have not provided evidence confirming that you have received the required number of doses of an accepted COVID-19 vaccine.[8]

• [46] The fact that the Appellant had refused and was refusing to comply with the Policy 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.[9]

• [47] Pursuant to s 137(4)(b) of the PS Act, a public service employee is entitled to normal remuneration during 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.

• [48] The decision-maker considered the nature of the discipline to which she believed the Appellant was liable and I am satisfied that was thoroughly outlined at pages 2 - 4 of the Suspension Decision.

• [49] 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. I am satisfied the Respondent afforded the Appellant natural justice, noting the decision-maker's comments:

In accordance with the principles of natural justice, no determination has been made nor will be made in relation to suspending you without remuneration until you have had the opportunity to formally respond.[10]

You were afforded a period of 14 days from the date of your receipt of that letter to provide a response. I am now in receipt of your response, which was received on 15 March 2022 (your response).[11]

• [50] 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.

• [51] 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.

• [52] I have concluded above that the decision-maker relevantly considered the nature of the discipline matter and note also that the decision-maker considered the public interest of the Appellant remaining on suspension with remuneration:

I have considered the public interest in you remaining on suspension with remuneration. As termination of employment is being considered, I do not consider that it is in the public interest that you remain on suspension with remuneration while this process continues.[12]

• [53] The Department has financial accountability obligations, including to use public resources in a responsible and effective manner. In light of the seriousness of the allegations against the Appellant as well as the consideration of terminating his employment - which ultimately occurred - I agree that it was not an appropriate use of public resources, nor in the public interest, for the Appellant to remain suspended with remuneration.

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

• [55] The Suspension Decision set out evidence in support of the ultimate conclusion to suspend the Appellant without remuneration and included intelligible justification following consideration of the matters raised by the Appellant. The allegations against the Appellant were serious and the evidence supporting the Suspension 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.

[1] [2022] QIRC 137.

[2] [2021] QIRC 369.

[3] Chen v State of Queensland (Queensland Health) [2022] ICQ 15, [27]-[32].

[4] [2019] QSC 170, [207]-[210], citing Minister for Immigration and Citizenship v Li [2012] HCA 61; (2013) 249 CLR 332, [63]-[76].

[5] [2022] QIRC 332.

[6] See for example: Brasell-Dellow & Ors v State of Queensland, (Queensland Police Service) & Ors [2021] QIRC 356; Tilley v State of Queensland (Queensland Health) [2022] QIRC 002; Slykerman v State of Queensland (Queensland Health) [2022] QIRC 039; Higgins v State of Queensland (Queensland Health) [2022] QIRC 030; Sunny v State of Queensland (Queensland Health) [2022] QIRC 119; Collins v State of Queensland (Queensland Health) [2022] QIRC 215; Edwards v State of Queensland (Queensland Health) [2022] QIRC 091; Barbagallo v State of Queensland (Queensland Health) [2022] QIRC 195; McPaul v State of Queensland (Queensland Health) [2022] QIRC 175; Knight v State of Queensland (Queensland Ambulance Service) [2022] QIRC 283; Brown v State of Queensland (Queensland Ambulance Service) [2022] QIRC 312; Godwin v State of Queensland (Queensland Health) [2022] QIRC 240; Lamb v State of Queensland (Queensland Health) [2022] QIRC 237. There are numerous others.

[7] [2022] QIRC 002.

[8] Letter from Ms V. Van Der Laak to the Appellant, 2 March 2022, 1.

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

[10] Letter from Ms V. Van Der Laak to the Appellant, 2 March 2022, 5.

[11] Letter from Ms V. Van Der Laak to the Appellant, 29 March 2022, 5.