Tadeo v State of Queensland

Industrial Relations Act 2016 (Qld), ss 272, 284, 287, 288, 292, 295, 562B and 562C

Information Privacy Act 2009 (Qld)

Public Service Act 2008 (Qld), ss 137, 187 and 194

Universal Declaration of Human Rights, arts 1, 2, 4, 5, 7, 12, 18, and 23

Universal Declaration on Bioethics and Human Rights, arts 3, 5, 6, 9, 10, 11 and 20

Work Health and Safety Act 2011 (Qld), ss 17, 18, 19, 27, 31, 32, 33, 34, 47, 48 and 49

Work Health and Safety Regulation 2011 (Qld), s 37

Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245

Brasell-Dellow & Ors v State of Queensland, (Queensland Police Service) & Ors [2021] QIRC 356

Gilmour v Waddell & Ors [2019] QSC 170

Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018)

Higgins v State of Queensland (Queensland Police Service) [2022] QIRC 030

R v Darling Island Stevedoring and Lighterage Co Ltd; Ex parte Halliday and Sullivan [1938] HCA 44; (1938) 60 CLR 601

Slivak v Lurgi (Australia) Pty Ltd (2001) 205 CLR 304

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

• [1] Ms Shiena Tadeo ('the Appellant') is employed by the State of Queensland (Department of Education) ('the Respondent') at Redlynch State College as a Technical Officer.

• [2] By letter dated 10 January 2022, the Appellant was advised by Ms Genevieve Gillies-Day, Executive Director, People and Corporate Services, that due to her failure to provide evidence of receiving a COVID-19 vaccine in accordance with the Department of Education Employment Direction 1/21 - COVID-19 Vaccinations ('Direction 1/21'), Ms Gillies-Day was of the view that the Appellant may be liable to discipline under a disciplinary law. The letter further informed the Appellant that she was suspended from duty on normal remuneration and that consideration was also given to suspend the Appellant without pay.

• [3] On 17 January 2022, the Appellant provided a response to the Respondent's consideration to suspend her without pay.

• [4] By letter dated 27 January 2022, Ms Rynell Hastie-Burroughs, Executive Director, Business Partnering and Engagement, advised the Appellant of the decision to suspend the Appellant without pay, effective from the date of the letter and that it would remain in place until 30 June 2022 or until otherwise advised, pursuant to s 137 of the Public Service Act 2008 (Qld) ('the PS Act').

• [5] By appeal notice filed on 9 February 2022, the Appellant appealed against the decision, pursuant to s 194(1)(bb) of the PS Act.

• [6] The appeal must be decided by reviewing the decision appealed against.[1] Because the word 'review' has no settled meaning, it must take its meaning from the context in which it appears.[2] An appeal under ch 11 pt 6 div 4 of the Industrial Relations Act 2016 (Qld) ('the IR Act') is not by way of rehearing,[3] but involves a review of the decision arrived at and the decision making process associated therewith.

• [7] The stated purpose of such an appeal is to decide whether the decision appealed against was fair and reasonable.[4] The issue for determination is whether the decision to suspend the Appellant without pay was fair and reasonable. Findings which are reasonably open to the decision maker are not expected to be disturbed on appeal.

What decisions can the Industrial Commissioner make?

• [8] In deciding this appeal, s 562C of the IR Act provides that the Industrial Commissioner may:

(b) set the decision aside and substitute another decision; or

(c) set the decision aside and return the issue to the decision maker with a copy of the decision on appeal and any directions considered appropriate.

• [9] Section 137 of the PS Act provides for the suspension of a public service employee:

(1) The chief executive of a department may, by notice, suspend a person from duty if the chief executive reasonably believes -

(a) for a public service officer - the proper and efficient management of the department might be prejudiced if the officer is not suspended; or

(b) for a public service employee - the employee is liable to discipline under a disciplinary law.

(a) when the suspension starts and ends; and

(b) whether the person is entitled to remuneration for the period of the suspension; and

(c) the effect that alternative employment may, under subsection (5), have on any entitlement to remuneration.

(3) However, before suspending the person, the chief executive must consider all reasonable alternatives, including alternative duties, a temporary transfer or another alternative working arrangement, that are available to the person.

(4) A public service employee is entitled to normal remuneration during a suspension, unless -

(a) the person is suspended under subsection (1)(b); 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.

(8) The chief executive may cancel the suspension at any time.

(9) In suspending a public service employee under this section, the chief executive must comply with -

(a) the principles of natural justice; and

(b) this Act; and

(c) the directive made under section 137A.

(10) However, natural justice is not required if the person is entitled to normal remuneration during the suspension.

• [10] Clause 6 of Directive 16/20 Suspension ('the Directive') relevantly outlines the factors that must be taken into consideration in considering suspending a public service employee without remuneration:

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.

6.4 A decision to suspend an employee without remuneration is subject to the principles of natural justice. Natural justice is the right to be given a fair hearing and the opportunity to present one's case, the right to have a decision made by an unbiased or disinterested decision maker and the right to have that decision based on logically probative evidence1. As part of the suspension process:

(a) The employee must be given the opportunity to respond to the proposed suspension without remuneration prior to the decision being made by the delegate. This can occur through a 'show cause' process at the time of notification of the initial suspension on normal remuneration, or at any subsequent stage during the suspension.

(b) The employee is to be provided with written notice, including the particulars required by section 137 of the PS Act, and reasons for the decision that suspension is without normal remuneration.

(c) The chief executive must provide the employee with a minimum of 7 days from the date of receipt of a show cause notice 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 if there are reasonable grounds for extension.

(d) If the employee does not respond to a show cause notice or does not respond within the nominated timeframe in clause 6.4(b) 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.

6.5 A public service employee may appeal a decision to suspend without normal remuneration. An appeal is made to the Queensland Industrial Relations Commission (QIRC) and further information can be found in their Appeals Guide.

6.6 An employee must be reimbursed for remuneration the employee does not receive during the employee's suspension if a decision on discipline has been made that does not result in termination of their employment.

6.7 The amount to be reimbursed is the employee's normal remuneration at the date of suspension without pay for the period the employee was suspended:

(a) taking into account any increase due to certified agreements or rulings made in State Wage Cases, but

(b) less any amounts of paid leave taken by the employee during a period of suspension.

6.8 An employee who ceases employment prior to a decision on discipline being made is not entitled to reimbursement.

6.9 Any amount earned by the employee from alternative employment the employee engaged in during the period of suspension must be deducted from the amount repaid to the employee under 6.7 above, unless:

(a) the employee was engaged in the employment at the time of the suspension, and

(b) the employee, in engaging in the employment, was not contravening:

(i) the PS Act, or

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

6.10 If the employee was not available to work during the period of suspension for reasons other than being suspended (for example, due to being detained in a corrective services facility), then the amount repaid to the employee must be less the total number of days that the employee was not available to work during the period of suspension.

• [11] On 16 December 2021, Direction 1/21 was issued by the Director-General of the Respondent.

• [12] Clause 2 of Direction 1/21 provides that compliance with Direction 1/21 is mandatory. Clause 3 of Direction 1/21 outlines the purpose of Direction 1/21:

In recognition of the high risk of transmission of the COVID-19 virus, for the protection of vulnerable persons and that a sudden reduction in available workforce would significantly affect the continuity of education services (among others) on Saturday 11 December 2021 the COVID-19 Vaccination Requirements for Workers in a high-risk setting Direction | Queensland Health (CHO Direction) was published re vaccination of workers in high-risk settings including:

• schools and outdoor education facilities;
• other education facilities, including TAFE, that are co-located with a school;
• outside school hours care and vacation care; and
• kindergartens, registered and licensed early childhood settings and family day-care providers.

The purpose of this direction is to outline the COVID-19 vaccination requirements for existing and prospective Department of Education workers (excluding OIR) who attend a high-risk setting as part of their role or the services they provide.

• [13] Clause 4 of Direction 1/21 outlines that Direction 1/21 applies to all workers of the Respondent who attend a high-risk setting as part of their role or the services they provide. The term 'high-risk setting' is defined under Direction 1/21 as follow:

High-Risk Setting means Early childhood, primary and secondary educational settings including:

• schools and outdoor education facilities
• other education facilities, including TAFE, that are co-located with a school
• outside school hours care and vacation care
• kindergartens, registered and licensed early childhood settings and family day-care providers

if part of a high-risk setting is not co-located and meets the requirements in paragraph 13 of the CHO Direction, a person engaged or employed to undertake work in that part of the high-risk setting is not subject to COVID-19 vaccination requirements.

• [14] Clause 5 of Direction 1/21 provides that all workers whose role requires any attendance in high-risk setting must have received the first dose of a COVID-19 vaccine by 17 December 2021 and show evidence of having received the first dose by no later than 7 January 2022. Further, workers must have received a prescribed number of doses of a COVID-19 vaccine by 23 January 2022 and show evidence of having received the prescribed number of COVID-19 vaccines by 24 January 2022.

• [15] Clause 8 of Direction 1/21 provides an exemption application will be considered where the employee has a recognised medical contraindication, or the worker is a COVID-19 vaccine trial participant supported by an eligible health professional.

• [16] In the appeal notice, the Appellant outlined the following reasons for appeal:

Prior to receiving my Notice of suspension, I emailed Redlynch State College Principal Mr MICHAEL HANSEN and staffvaccinationstatus@qed.qld.gov.au during December 2021 communicating my desire to obtain the exemption procedure and be given a risk assessment but failed to receive adequate answers. I then emailed a Notice of Demand dated 7/1/22 to Mr HANSEN and Director-General Mr MICHAEL DE'ATH. The same Notice of Demand has been emailed to Head of Primary Campus SAMANTHA MOLLOY, Associate Director-General CRAIG ALLEN and staffvaccinationstatus@qed.qld.gov.au.

In order for me to understand my legal obligations and reason of my suspension, on 17/1/22 I submitted my Notice of Response to Notice of Suspension demanding for further and better particulars including all evidence to prove the following:

- hindrance and risk to a person by not releasing my private and sensitive health information

- existence of purified SARS-COV-2 Omicron and if that virus exposed to healthy human would cause the disease COVID-19

- safety and effectivity of COVID-19 vaccine including all trial studies, risk assessments, SDS and ingredients

- if the Department of Education and Department of Health will take full legal and financial responsibility for any injury or death of staff as a result of the mandatory COVID-19 vaccination

- if the Department of Education consulted relevant awards and contracts and the changes to my employment were done so lawfully with full valid and informed consent

- to justify Equality Before the Law when the mandatory vaccination is not imposed to higher education facilities staff nor Federal employees

- that Department of Education can show precedence that any legally binding directions considered "reasonable" for its employees to have injected through coercive measures to maintain staff's employment status

- that I will not be under duress from my employer to take the vaccine

Unfortunately, none of those demands were answered and accommodated for consideration as "reasonable excuse" when I received my suspension without pay decision on 27/1/22.

• [17] The Commission issued a Directions Order calling for submissions from both parties following receipt of the appeal notice. The submissions are summarised below.

• [18] The Appellant, in her submissions, outlines her role and duties as a Technical Officer and submits that most of her duties are completed in the technician's room and that entry to classrooms and other areas occur during break or outside school hours so as to avoid distraction and downtime during class, and to prevent accident that may arise with students and staff.

• [19] The Appellant questions as to whether a survey that was sent to the Appellant asking the Appellant her vaccination status, being conducted on a third party service, collects and identifies sensitive information, breaches the Information Privacy Act 2009 (Qld) and further 'disclaim' the Appellant's workplace rights pursuant to s 284 of the IR Act and s 21 of the Human Rights Act 2019 (Qld) ('the HR Act') to illegally make an inquiry and obtain a response.

• [20] The Appellant further questions whether the survey constituted the consultation process and, if so, the Appellant was not given an opportunity to express her view, raise work health issues and contribute to the decision making, breaching ss 47 to 49 of the Work Health and Safety Act 2011 (Qld) ('the WHS Act').

• [21] The Appellant refers to an email of Mr Allen dated 9 December 2021 advising, inter alia, that a disciplinary process will commence for staff who has not complied with Direction 1/21. The Appellant questions whether the email amounts to financial threat, pressure, coercion and bullying, breaching ss 272, 287, 288, 292, 295 of the IR Act, s 359 of the Criminal Code Act 1899 (Qld) and the HR Act.

• [22] The Appellant further refers to multiple emails sent to the Appellant by the Respondent on 2, 13, 16, 20, 23 and 31 December 2021 and 4 January 2022 and questions whether this classifies as 'workplace harassment carried out during my entitled holiday'.

• [23] The Appellant makes several demands for 'irrefutable evidence' of the following:

(a) the Department does not contradict with its own internal vaccination policy.

(b) the Department is authorised to mandate all staff 'to receive ... a specified vaccination' as per Biosecurity Act 2015 (Cth), and if the mandate does not breach s 478(5) of the same Act.

(c) seeking to apply State Law to an employee of a trading corporation within the meaning of s 51(xx) of the Constitution will not be inconsistent with the Fair Work Act 2009 (Cth), where relations between a trading corporation and its employees are governed by Commonwealth law.

(d) the Department's 'mandatory COVID-19 vaccinations' does not constitute to slavery.

[22] ...I DEMAND irrefutable evidence of the existence of the novel COVID-19 virus by means of purification, where that isolated virus can cause the disease COVID-19 when exposed to healthy humans, and studies that prove 'vaccinated' person does 'prevent ... from spreading COVID-19 to ... co-workers'.

[25] ...I DEMAND irrefutable evidence that RSC vaccinated staff will not contract COVID-19 and will not be absent from work caused by COVID-19 disease, and the threat of getting the disease exists only to unvaccinated staff and unvaccinated staff will surely experience 'serious COVID symptoms'.

• [24] The Appellant makes further demands for the following to be provided by the Respondent:

(a) given the effective date of Direction 1/21 was 15 December 2021 and the Appellant's last day of work in 2021 was 10 December 2021, the legislation that forces the Appellant to work, such as reading and replying to work emails, be harassed with SMS sent to the Appellant's private phone, or 'engage with and comply with the direction', while the Appellant is on approved leave;

(b) the document which lists all duties or other alternatives that had been identified and considered;

(c) the risk assessment conducted by the Respondent that documents how to 'appropriately manage the risk that arises due to' unvaccinated staff in accordance with ss 17 to 19 of the WHS Act and whether the 'COVID-19 vaccination program' is 'fit for purpose' in accordance with s 37(a) of the Work Health and Safety Regulation 2011 (Qld);

(d) the legislation or the Appellant's contract which states that it is compulsory to complete a survey regarding vaccination status;

(e) a list of the Respondent's pre-decided 'approved exemption' and 'qualifying exceptional circumstances'; and

(f) written evidence proving that the Appellant was consulted, including the results and whether it answered s 48(1) of the WHS Act.

• [25] The Appellant further demands that the Respondent 'show cause' to the following:

a) it decided to suspend me from duty when it failed to lawfully respond to all of demands stipulated in my previous Notice of Demand and Notice of Response to Notice of Suspension.

b) the Director-Generals, Principals and COVID compliance team should not be personally, legally, criminally and financially liable for nonfeasance by not providing me with a comprehensive valid Risk Assessment of the direction the Department required me to comply.

c) it is not issuing a Conscientious Objection exemption to COVID-19 vaccinations as demanded on my Notice whereas it is an entity with no right to limit or destroy my human right.

d) it breached WHS Act s 27 by not exercising due diligence to keep up-to-date knowledge of work health matters and examining the validity of the Extension of Public Health Emergency.

e) it should not be held liable for malfeasance by disregarding data from ABS.gov.au where its current data as of 15 February 2022 clearly shows that 220 persons died from COVID-19 alone, while TGA.gov.au shows 760 persons who died as a result of taking the COVID-19 vaccine.

• [26] The Appellant refers to the cl 4.4 of the Directive and submits that the Respondent failed to properly consider and protect the Appellant's human rights pursuant to ss 15, 17, 18 and 20 of the HR Act, arts 1, 2, 4, 5, 7, 12, 18, and 23 of the Universal Declaration of Human Rights, and arts 3, 5, 6, 9, 10, 11 and 20 of the Universal Declaration on Bioethics and Human Rights.

• [27] The Appellant submits that the Respondent does not consider death as a reasonable excuse for not receiving a COVID-19 vaccination and has knowingly committed an offence pursuant to ss 31 to 34 of the WHS Act and ss 295 to 298, 306, 309, 311, 328 and 541 of the Criminal Code Act 1899 (Qld).

• [28] In response to the Appellant's submissions, the Respondent submits that Direction 1/21 is based on the Chief Health Officer's Covid-19 Vaccination Requirements for Workers in a high-risk setting Direction ('the CHO Direction') which took effect on 11 December 2021.

• [29] The Respondent highlights that the Respondent complied with its obligations under the WHS Act to consult with employees and with the registered unions representing employees prior to the introduction of Direction 1/21. The Respondent submits that consultation included specific staff-wide broadcast messages from the Director-General about the requirements of the CHO Direction and the requirement to be fully vaccinated. The consultation also included dedicated meetings with registered unions representing employees employed within the Respondent and that all unions indicated their support for Direction 1/21.

• [30] The Respondent further submits that throughout the consultation process prior to the introduction of Direction 1/21, the Respondent engaged in consultation through its existing Work Health & Safety Committee framework, including the Peak Joint Consultative Health & Safety Committee about the requirements of Direction 1/21 and risks associated with COVID-19. The Respondent notes the size of the Respondent, the number of employees and departmental locations and submits that the Respondent was not required to undertake individual risk assessments for each employee or workplace.

• [31] The Respondent submits that, where a worker seeks to be exempt from the requirements of Direction 1/21, the worker must complete the Respondent's COVID-19 Vaccine Declaration survey and select 'exemption to vaccinate'. The Respondent submits that these workers will then be sent additional information on how to provide evidence. Where an exemption is granted, the Respondent will conduct appropriate risk assessments and consult with those affected in relation to appropriate control measures.

• [32] The Respondent submits that the decision to suspend the Appellant without pay is fair and reasonable. In support, the Respondent submits, in summary, that:

(a) the Appellant has not applied for an exemption in respect to receiving a COVID-19 vaccine, nor has she expressed any intention or willingness to abide by the requirements to become vaccinated in accordance with Direction 1/21;

(b) the Appellant was notified of the proposed suspension without pay and took advantage of the opportunity to respond. The Appellant, in her response, did not provide any medical contraindication or evidence supporting any exceptional circumstance that would exclude her from receiving a vaccine;

(c) Ms Hastie-Burroughs carefully considered the Appellant's submissions and weighed these against the objects and requirements of Direction 1/21, noting the high level of risk to the health and wellbeing of students, families, departmental workers, and other key stakeholders who access Redlynch State College;

(d) Ms Hastie-Burroughs considered all reasonable alternatives, including alternative duties or adjustments and remained 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 with Direction 1/21;

(e) it was reasonable for Ms Hastie-Burroughs to conclude the Appellant's reasons for not complying with Direction 1/21 did not justify the approval of using public funds to pay the Appellant whilst she is suspended and unable to work in a school;

(f) it is evident from the Appellant's submissions that she has a personal preference not to receive a vaccine;

(g) the matters raised by the Appellant can be categorised as vaccine hesitancy. Vaccine hesitancy is not an exceptional circumstance and it does not result in requiring compliance with Direction 1/21 being unreasonable, having regard to the risk posed by COVID-19;

(h) to the extent the Appellant says she did not receive any response to her requests for information or 'demands', there is no lawful basis upon which the Appellant could request access to a risk assessment undertaken by the Respondent in relation to the COVID-19 vaccines or her specific workplace;

(i) although there have been short periods when schools have been closed during COVID-19 lockdowns that the Appellant performed duties from home, this is not an available option when students, teachers and other operational staff are required to return to school; and

(j) as a Technical Officer, the Appellant is required to maintain a range of technical services related to the support of ICT, including infrastructure which can not be done from home. Further, permitting the Appellant to work from home would not excuse the Appellant from being required to comply with Direction 1/21 as an employee of the Respondent.

• [33] In reply to the Respondent's submissions, the Appellant questions when the CHO of the Department of Health became part of the Appellant's employment as the Appellant has no legally binding contract with the Department of Health. The Appellant further submits the following regarding the Respondent's submission that Direction 1/21 was based on the CHO Direction:

The Department failed to exercise its WHS due diligence by merely basing its Direction 1/21 to CHO direction. CHO direction has no clause stating that an employer can suspend a worker for not taking the mandatory COVID-19 vaccinations, nor a clause that an employer can interfere a person's fundamental right to earn a living, which signifies that my suspension is unlawful. CHO is not authorise (sic) to mandate workplace contractual outcomes. Direction 1/21 has no lawful Human Rights Certificate thus have no justification in violating my human rights. Further, I am an employee governed by Commonwealth law and CHO Direction lies under a state law which is not applicable.

• [34] The Appellant submits that the onus is on the Respondent to prove that Direction 1/21 is 'permitted at law', whether 'proper consideration to human rights' was given when the suspension without pay decision was made and to provide the risk assessment. The Appellant submits that the Respondent, in not performing and providing a risk assessment report, is reckless conduct breaching pt 5A of the WHS Act. The Appellant submits that full, free and informed consent can not be provided without a risk assessment.

• [35] The Appellant submits that unilateral and one-way declaration in a form of staff-wide broadcast message can not be considered as a consultation and breaches ss 47 to 49 of the WHS Act. The Appellant notes that she is not a member of any union and the Respondent's failure to utilise its resources to facilitate a consultation in a form of unidentified survey to check if all staff has union affiliation is a breach of s 27(5)(f) of the WHS Act.

• [36] With respect to the Respondent's submission that the Appellant had not applied for an exemption, the Appellant submits that the Appellant raised the privacy concerns regarding the survey and have taken genuine steps in asking for the exemption procedure directly, however the Respondent had neglected the Appellant's concerns and did not provide adequate answers. The Appellant highlights that the Appellant had asked for a medical exemption from her doctor on 4 December 2021 but was refused.

• [37] The Appellant submits for the Respondent to require the Appellant to voluntarily expose to risk of death or serious injury is an offence pursuant to ss 32 and 33 of the WHS Act. Further, in mandating the Appellant to participate in an experimental vaccine that is still undergoing evaluation is a violation of s 17 of the HR Act.

• [38] The Appellant submits that the Respondent's admission that the Respondent was not required to undertake individual risk assessments for each employee or workplace is evidence which proves that the Respondent failed to comply its health and safety duty of care obligation.

• [39] The Appellant submits that suspension as a result of non-compliance to mandatory COVID-19 vaccinations is not a condition of the Appellant's employment when the Appellant commenced employment with the Respondent in April 2020 and in changing the Appellant's employment condition without consultation and informed consent is a breach of contract.

• [40] Consideration of an appeal of this kind requires a review of the decision to suspend the Appellant without pay to determine if the decision was fair and reasonable in the circumstances.

• [41] The Appellant was advised by letter dated 10 January 2022 that the decision maker was of the view that the Appellant may be liable to discipline under a disciplinary law following the Appellant's failure to provide evidence of receiving a COVID-19 vaccine in accordance with Direction 1/21. The Appellant was given an opportunity to respond to the decision maker's correspondence and after consideration of the Appellant's response, a decision maker advised the Appellant of the decision to suspend the Appellant without pay. I am satisfied that the Appellant was afforded natural justice throughout the process.

• [42] The correspondence provided the following reasons for the decision:

(a) The Direction has been adopted state-wide for the protection for vulnerable persons and where a sudden reduction in available workforce would significantly affect the continuity of education services (among others). Unless an individual has a diagnosed medical contraindication or other qualifying exceptional circumstance the Direction is a reasonable one.

(b) 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 of the department's control.

(c) I have previously considered all reasonable alternatives, including alternative duties or adjustments and remain of the view that there is no reasonable alternative role or reasonable adjustments available which appropriately manage the risk that arises due to your non-compliance.

(d) You have 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.

(e) I am not in receipt of any material, through your response to me, the Department's vaccination status survey or otherwise, 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.

(f) 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 this process is underway.

• [43] Section 137 of the PS Act provides that the chief executive of a department may, by notice, suspend a person from duty if the chief executive reasonably believes that a public service employee is liable to discipline under a disciplinary law. Section 187(1)(d) of the PS Act establishes a ground of discipline where an employee has 'contravened without reasonable excuse, a direction given to the employee as a public service employee by a responsible person'.

• [44] The circumstances in this matter are that the Appellant has made a decision to not comply with Direction 1/21 to receive and provide evidence of receiving a COVID-19 vaccination and consequently may be liable to discipline under a disciplinary law for contravening a direction without reasonable excuse.

• [45] Direction 1/21 allowed for employees to seek an exemption from compliance with the vaccine requirements. The Appellant did not seek an exemption through the process outlined in the Directive and no evidence of a medical contraindication was provided. The Appellant submits that she had asked for a medical exemption from her doctor but was refused. The Appellant also submits that she attempted to seek an exemption however this did not occur through the appropriate process as she had concerns about privacy. It was not unreasonable for the decision maker to determine that the Appellant did not provide evidence of having a recognised medical contraindication.

• [46] It is not in dispute that the Appellant did not comply with the direction to receive a COVID-19 vaccination nor did she receive an exemption from receiving a COVD-19 vaccination. In such circumstances, it was not unreasonable for the decision maker to form a reasonable belief that the Appellant may be liable for discipline under a disciplinary law.

• [47] The decision maker considered all reasonable alternatives, including alternative duties or adjustments and determined that there was no reasonable alternative role or reasonable adjustments available which appropriately manage the risk that arose due to the Appellant's non-compliance. As a Technical Officer, the Appellant is required to maintain a range of technical services related to the support of ICT, including infrastructure. These duties can not be done from home exclusively and I accept that it is not an option when students, teachers and other operational staff are required to be at school.

• [48] The Appellant made a number of submissions that relate to the lawfulness of the CHO Direction upon which Direction 1/21 was based. The CHO made a Direction regarding workers in high-risk settings which took effect on 11 December 2021. It was reasonable for the Respondent to implement Direction 1/21 following the identification of various education settings as 'high risk setting' to ensure that it was both complying with the CHO Direction and exercising its duty of care to staff, students and school communities.[5]

• [49] The Appellant's submissions contain numerous 'demands' for information. I accept the Respondent's submission that there is no lawful basis upon which the Appellant could demand the information requested. I also note the Respondent's submission that it is not responsible for allaying the Appellant's concerns about receiving a COVID-19 vaccine. The Appellant has the right to inform herself with relevant information and has been afforded the time to do so. The Appellant also has the right to hold personal views about the vaccine, however as determined in Higgins v State of Queensland (Queensland Police Service),[6] the Respondent is not required to accept the Appellant's views.

• [50] The Appellant's submissions are framed in such a way that pose 'questions' as to whether aspects of Direction 1/21 are contrary to other legislation, demand 'irrefutable evidence' of various contentions, and demand that the Respondent 'show cause' as to various allegations made by the Appellant. These submissions indicate broadly that the Appellant is vaccine hesitant, which of itself does not excuse the Appellant from compliance with Direction 1/21. These submissions generally do not address the legislative criteria as to the decision to suspend the Appellant without pay.

• [51] The Appellant made submissions relating to the consultation process that, in essence, state that the employer was required to consult with all employees. The Respondent has an obligation under the WHS Act and the Work Health and Safety Regulation 2011 (Qld) to ensure the health and safety of workers, so far as reasonably practicable. The Respondent submits that it has met the requirement to consult pursuant to ss 47 and 48 of the WHS Act and consulted with the relevant registered unions representing employees through established process and the Peak Joint Consultative Health & Safety Committee prior to the introduction of Direction 1/21. The Respondent's obligation to consult did not require it to consult with employees on an individual basis, particularly in circumstance in which it has approximately 85,000 employees. The Full Bench considered the description of 'reasonably practicable' by Gaudron J in Slivak v Lurgi (Australia) Pty Ltd[7] in Brasell-Dellow & Ors v State of Queensland, (Queensland Police Service) & Ors ('Brasell-Dellow'):[8]

In Slivak v Lurgi (Australia) Pty Ltd, Gaudron J described the notion of "reasonably practicable", in the context of fulfilment of a safety obligation, as follows:

The words 'reasonably practicable' have, somewhat surprisingly, been the subject of much judicial consideration. It is surprising because the words 'reasonably practicable' are ordinary words bearing their ordinary meaning. And the question whether a measure is or is not reasonably practicable is one which requires no more than the marking of a value judgment in the light of all the facts. Nevertheless, three general propositions are to be discerned from the decided cases:

'the phrase 'reasonably practicable' means something narrower than 'physically possible' or 'feasible';

what is 'reasonably practicable' is to be judged on the basis of what was known at the relevant time;

to determine what is 'reasonably practicable' it is necessary to balance the likelihood of the risk occurring against the cost, time and trouble necessary to avert the risk.[9]

• [52] I also note that the Respondent sent broadcast communications regarding COVID-19 vaccination to employees on a number of occasions[10] ensuring that adequate information was provided to every employee.

• [53] The Appellant made submission regarding the legal status of the direction to be vaccinated in the context of her employment contract. The Full Bench considered issues relating to a direction given to an employer in Brasell-Dellow:

A direction given to an employee does not, without more, become a term or condition of employment. This is made clear in the management prerogative cases. Where a directive is within the scope of employment and it is not contrary to the employment contract, the award or any certified agreement, the direction must be obeyed provided compliance does not involve illegality and the directive is reasonable.[11]

• [54] The Appellant submits that the Respondent's decision is in breach of the HR Act. The Respondent submits that the Appellant's human rights were considered when making the determination to suspend the Appellant without pay. The decision maker considered the Appellant's response to the proposed suspension without pay and weighed these against the objects of Direction 1/21. Following consideration of the high level of risk to the health and wellbeing of students, families, department workers and other stakeholders who access Redlynch State College, the decision maker determined that it was reasonable to suspend the Appellant without pay.

• [55] The Appellant's human rights have been considered by the Respondent and after balancing the Appellant's human rights with the other relevant factors, I am satisfied that the decision is not contrary to the HR Act.

• [56] The decision maker determined that it was not appropriate for the Appellant to be entitled to normal remuneration during the suspension having regard to the nature of the discipline to which it was believed the Appellant is liable. The decision maker outlined their consideration in the letter:

(f) Given your failure to comply with the Direction, the time you have had to engage 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 this process is underway.

• [57] I am satisfied that the decision maker complied with the requirements of both the PS Act and the Directive as demonstrated in the decision.

• [58] The relevant principles in considering whether a decision is 'unreasonable' were outlined by Ryan J in Gilmour v Waddell & Ors:[12]

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.[13]

• [59] Applying the principles outlined above, I do not consider that the decision to suspend the Appellant without pay lacks justification in the circumstances. The decision complied with the requirements of the PS Act and the Directive, and based on the information before me, I am satisfied that the decision to suspend the Appellant without pay was fair and reasonable.

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

[1] Industrial Relations Act 2016 (Qld) s 562B(2) ('IR Act').

[2] Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245, 261.

[3] Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018), 5 as to the former, equivalent provisions in s 201 of the PS Act.

[4] IR Act s 562B(3).

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

[6] [2022] QIRC 030.

[7] (2001) 205 CLR 304.

[8] [2021] QIRC 356.

[10] 30 November, 3 December, 9 December, 11 December and 16 December 2021.

[11] Brasell-Dellow, [65] citing R v Darling Island Stevedoring and Lighterage Co Ltd; Ex parte Halliday and Sullivan [1938] HCA 44; (1938) 60 CLR 601, 621.

[12] [2019] QSC 170.