Stocks v State of Queensland

Public Sector Act 2022 (Qld) ss 129, 131, 133, 324

Public Service Act 2008 (Qld) ss 187, 188 (repealed)

Employment Direction 1/21 - COVID-19 Vaccinations

Employment Direction 1/22 - COVID-19 Vaccinations

Carr v State of Queensland (Department of Education) [2024] QIRC 210

Donaldson v State of Queensland (Department of Education) [2024] QIRC 239

Sankey v State of Queensland (Department of Education) [2024] QIRC 197

Stacey v State of Queensland (Department of Education) [2024] QIRC 220

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

• [1] Ms Joanne Stocks ('the Appellant') is employed by the State of Queensland within the Department of Education ('the Department') as a Head of Curriculum (Experienced Senior Teacher) at Cedar Creek State School.
• [2] In December 2021, the Director-General of the Department issued Employment Direction 1/21 - COVID-19 Vaccinations, followed by a revised Employment Direction 1/22 - COVID-19 Vaccinations in March 2022 (collectively, 'the Direction'). The Direction applied to all Department workers whose role required any attendance in a 'high-risk setting', the definition of which included primary and secondary educational settings.[1]
• [3] The Direction therefore required the Appellant to have received a first dose of a COVID-19 vaccine by 17 December 2021, and to have received the prescribed number of doses of a COVID-19 vaccine by 23 January 2022,[2] unless she was granted an exemption from complying with the Direction.[3]
• [4] It is not in dispute between the parties that the Appellant:
  • did not comply with the Direction by not receiving any COVID-19 vaccinations;
  • was granted an ATAGI temporary medical contraindication to the COVID-19 vaccine, valid from 5 February 2022 to 21 May 2022;
  • was approved to return for work for a period of five weeks during the period in which the temporary medical contraindication was valid; and
  • did not obtain a further exemption, or produce evidence of having complied with the Direction, to cover the period from 21 May 2022 (when the temporary medical contraindication expired) to 30 June 2022 (when the Direction was revoked).
• [5] In light of the Appellant's non-compliance with the Direction from 21 May 2022 onwards, Mr David Miller (Executive Director, Early Learning and Development) issued the Appellant a show cause notice on 10 June 2022, inviting her to respond within 14 days to the following allegation:[4]

Allegation: You have contravened, without reasonable excuse, Clause 5 of the Direction, 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.

• [6] The Appellant provided a response to the show cause notice on 24 June 2022.
• [7] On 1 August 2022, Ms Anne Crowley (Assistant Director-General) ('the decision-maker') wrote to the Appellant, informing her that she had determined the allegation to be substantiated on the balance of probabilities.
• [8] Having made disciplinary findings against Ms Stocks pursuant to s 187(1)(d) of the

(now repealed) Public Service Act 2008 (Qld), Ms Crowley proposed the disciplinary action of "a reduction in renumeration, from H01-02 to H01-01, for a period of 20 weeks, at which time you will automatically revert to your previous increment, and a reprimand."[5] Ms Stocks was afforded seven days to show cause why this proposed disciplinary action should not be taken. A response to the proposed disciplinary action was provided by the Appellant on 7 August 2022.

• [9] On 22 August 2022, Ms Crowley informed the Appellant of her decision to impose the disciplinary action, pursuant to s 188(1) of the Public Service Act 2008 (Qld), of a reduction in renumeration, from H01-02 to H01-01, for a period of 18 weeks (following which Ms Stocks would revert to the previous increment) and a reprimand ('the disciplinary action decision').[6]
• [10] This disciplinary action decision of 22 August 2022 is the subject of Ms Stocks' appeal, filed on 31 August 2022.
• [11] However, on 21 October 2022, Ms Crowley informed the Appellant that she had made the decision to revoke the disciplinary action decision of 22 August 2022.[7] In its place,

Ms Crowley advised that she was giving consideration to revised disciplinary action of a monetary penalty of $84.46 to be deducted from the Appellant's renumeration payments for a period of 18 weeks, and a reprimand.

• [12] After having received a response from the Appellant to the proposed revised disciplinary action, Ms Crowley informed her on 5 December 2022 that she had determined to impose disciplinary action as proposed on 21 October 2022.[8] The Appellant has not filed an appeal against this new disciplinary action decision.
• [13] Ms Leia Graham (Principal Employee Relations Advisor) wrote to the Appellant on

15 November 2022, informing her that "as the decision the subject of your appeal has now been revoked, you may wish to discontinue your appeal."[9] However, at a mention before His Honour, Vice President O'Connor on 18 April 2024, the Appellant confirmed her wish to proceed with her appeal.[10]

• [14] His Honour accordingly issued a Directions Order on 18 April 2024, ordering the parties to file written submissions addressing whether the Commission should decide not to hear the appeal, pursuant to s 562A(3) of the Industrial Relations Act 2016 (Qld)

('the IR Act').

• [15] Pursuant to s 451(1) of the IR Act, no hearing was conducted in deciding this Appeal, and this matter was decided on the papers with reference to the submissions filed by both parties.

• [16] The Public Sector Act 2022 (Qld) ('the PS Act') commenced on 1 March 2023, repealing the previous Public Service Act 2008 (Qld) in effect both at the time of the appealed decision and when Ms Stocks filed her appeal.
• [17] Section 324 of the PS Act provides the following:

(a) before the commencement, a person appealed against a decision under the repealed Act, section 194; and

(b) immediately before the commencement, the appeal had not been decided.

(2) From the commencement, the appeal must be heard and decided under chapter 3, part 10.

• [18] Ms Stock's appeal had not been decided immediately before the commencement of the PS Act, and will therefore now be decided under ch 3 pt 10. For completeness, I am satisfied that the disciplinary action decision is one that may be appealed against,[11] that the Appellant is entitled to do so,[12] and that the appeal was lodged within the required time.[13]

• [19] Section 562B of the IR Act provides that:

562B Public service appeal to commission is by way of review

(1) This section applies to a public service appeal made to the commission.

(2) The commission must decide the appeal by reviewing the decision appealed against.

(3) The purpose of the appeal is to decide whether the decision appealed against was fair and reasonable.

• [20] As noted by Industrial Commissioner Dwyer in Stacey v State of Queensland (Department of Education) ('Stacey'), the language of s 562B "plainly establishes that a review is limited to a single decision."[14] In this instance, the Commission's jurisdiction is limited to a review of, and only of, the decision appealed against, namely the disciplinary action decision. It follows that the jurisdiction granted to the Commission in these proceedings is not so broad as to allow consideration of decisions made prior to, or following, the issuing of the disciplinary action decision. Therefore, neither the fundamental finding (in the disciplinary finding decision of 1 August 2022) of conduct liable to disciplinary action, nor the revised disciplinary action decision of 5 December 2022, can be disturbed in this review.[15]

• [21] The present issue for my determination is the issue on which the parties have filed written submissions, namely, whether the Commission should decide not to hear the appeal pursuant to s 562A(3) of the IR Act, which provides:

562A Commission may decide not to hear particular public service appeals

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

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

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

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

• [22] Having considered the submissions of both parties, my view is that I should exercise my discretion and not hear Ms Stocks' appeal. In the first instance, this is for the compelling reason that, given the Department's revocation of the disciplinary action decision appealed against, there can be no practical effect from any decision I make in respect of the appeal.
• [23] Section 562C of the IR Act outlines that:

562C Public service appeals - decision on appeal

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

(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.

• [24] As observed by Deputy President Merrell in Venables v State of Queensland (Queensland Health), 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."[16]
• [25] Regardless of whether I were to confirm or set aside the disciplinary action decision of 22 August 2022, my doing so would have no real effect on Ms Stocks or her continued employment; the Department has already elected not to impose disciplinary action on the Appellant in the terms outlined in the decision appealed against, and has revoked it accordingly. While Ms Stocks has elected to continue with her appeal despite it being suggested to her that its discontinuance may be a more prudent course of action, she has failed to make any submission as to any practical benefit she could derive from this appeal being heard.
• [26] It is clear that any decision I make in respect of the appeal will have no practical effect on the Appellant's continued employment. It is on that basis alone that I find there to be a compelling reason to decline to hear the appeal pursuant to s 562A(3)(b)(iii) of the

• [27] Even if the above finding were not open to me, I would regardless decline to hear this appeal pursuant to s 562A(3)(b)(ii) of the IR Act for the alternative reason that it is misconceived as a whole.
• [28] That the Direction applicable to the Appellant's employment was lawful and reasonable is entirely uncontroversial. As I observed in Sankey v State of Queensland (Department of Education), the "volume of decisions issued by this Commission finding that the Department's Direction was lawful and reasonable is indeed so significant that further consideration of any argument to the contrary is rendered entirely unnecessary."[17]
• [29] This Commission has also repeatedly emphasised the seriousness of an employee's failure to follow a lawful and reasonable instruction; as observed by Industrial Commissioner Dwyer in Stacey, an employee who fails to comply with such an instruction "must expect that a consequence of that choice will, in all likelihood, be the termination of their employment."[18]
• [30] The Appellant was clearly non-compliant with the Direction to which she was subject after the expiry of her temporary exemption on 21 May 2022. At no point after this date until the Direction's revocation did she provide evidence of having complied with its vaccination requirements, nor did she provide evidence of a medical contraindication to warrant the granting of a further exemption from compliance.
• [31] The Appellant's attempts to circumvent the Department's vaccination requirements by accessing her leave entitlements, do not absolve her of compliance with the Direction upon the expiry of her temporary exemption. Ms Stocks was not able to lawfully enter, let alone work at, her workplace throughout this period, and the Department was required to take all reasonable steps to prevent her from doing so unless and until she demonstrated her compliance with the Direction or was granted an exemption from doing so.[19] While the Appellant was free to do neither, the consequences of plainly making the choice to not comply with the Direction are her responsibility alone.
• [32] As the Appellant clearly disobeyed a lawful and reasonable direction, and continues to assert that her doing so was justified, the disciplinary action originally imposed is not punitive or excessive; it is "an entirely lenient consequence" that has resulted in Ms Stocks remaining employed with the Department despite her serious misconduct, and in circumstances where it was open to the Department to impose a heavier penalty.[20]
• [33] The Appellant seems ignorant of the incredibly good fortune she has been afforded in avoiding the warranted imposition of a far more detrimental penalty, with this short-sighted position manifesting in her pursuit of an appeal that is fundamentally misconceived.
• [34] In the circumstances I intend to exercise my discretion to not hear Ms Stocks' appeal, and order accordingly.

Pursuant to section 562A(3)(b)(iii) of the Industrial Relations Act 2016 (Qld), I decline to hear the appeal

[1] See definition of 'high-risk settings' on page 4 of Employment Direction 1/22 - COVID-19 Vaccinations.

[4] Letter of Mr D. Miller (Executive Director, Early Learning and Development) to Ms J. Stocks, dated 10 June 2022, 1.

[5] Letter of Ms A. Crowley (Assistant Director-General) to Ms J. Stocks, dated 1 August 2022, 3.

[6] Letter of Ms A. Crowley (Assistant Director-General) to Ms J. Stocks, dated 22 August 2022, 2.

[7] Letter of Ms A. Crowley (Assistant Director-General) to Ms J. Stocks, dated 21 October 2022, 2.

[8] Letter of Ms A. Crowley (Assistant Director-General) to Ms J. Stocks, dated 5 December 2022, 2.

[9] Email of Ms L. Graham (Principal Employee Relations Advisor) to Ms J. Stocks, dated 15 November 2022.

[10] Transcript of 18 April 2024, 1-11 ll 19-22.

[11] Public Sector Act 2022 (Qld) ss 129, 131(1)(c).

[12] Ibid, s 133(c).

[13] Industrial Relations Act 2016 (Qld) s 564.

[14] [2024] QIRC 220 [11], citing Carr v State of Queensland (Department of Education) [2024] QIRC 210.

[15] As observed by Industrial Commissioner Dwyer in Stacey v State of Queensland (Department of Education) [2024] QIRC 220 [18], it may be necessary to examine preceding findings when an imposed penalty is challenged. However, this exercise does not amount to a direct challenge of those preceding findings.

[16] [2022] QIRC 137 [23].

[17] [2024] QIRC 197 [29].

[18] [2024] QIRC 220 [38].

[19] See Sankey v State of Queensland (Department of Education) [2024] QIRC 197 [30]-[31].

[20] Donaldson v State of Queensland (Department of Education) [2024] QIRC 239 [31].