Tribe 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

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

• [1] Mrs Megan Tribe (the Appellant) is employed as a Business Manager AO3 at Bajool State 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 21 January 2022, the Respondent advised the Appellant she was suspended on normal remuneration pursuant to s 137(1)(b) of the Public Service Act 2008 (Qld) (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, Safety and Integrity.[5]

• [9] On 27 January 2022, the Appellant provided a response through the Red Union.[6]

• [10] In correspondence dated 22 February 2022, the Respondent advised the Appellant of the decision to suspend her without remuneration effective immediately (the Suspension Decision).[7] The Suspension Decision was conveyed in correspondence from Ms Gillies-Day (the decision-maker).

• [11] On 31 March 2022, the Appellant filed an Appeal Notice with the Industrial Registry.

• [12] On p 3 of the Appeal Notice, the Appellant identifies the type of decision being appealed as "a decision about suspension without pay".

• [13] 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.

• [14] Although the Appellant seeks to appeal a decision about suspension without pay, she refers to an email she received on 16 March 2022 which advises that the Respondent has overpaid the Appellant as a result of the Appellant continuing to be paid while she was on suspension due to no vaccination leave without pay for the period 22 February 2022 to 27 February 2022.[8] In light of that correspondence, the Appellant seeks that the Commission "look into my request to waive the overpayment pay back request and for Education Queensland to back pay me up to the 21/03/2022 which is the date that I received the written notification that I would be on unpaid suspension."[9]

• [15] In an email dated 19 April 2022, the Appellant indicated, "You are correct that I am appealing when I was suspended on NO PAY from because if the principal Shona Boardman hadn't disabled my work email account I would have received the suspension sign no pay email on time."

• [16] Section 562C of 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.

• [17] The decision being appealed against is the Suspension Decision. Therefore, the Commission in this matter may either confirm or set aside that Suspension Decision. While I acknowledge the Appellant specifically takes issue with the date on which the Suspension Decision took effect and the subsequent request for repayment - those matters are incidental to the Suspension Decision and my focus in this appeal is on whether the Suspension Decision itself was fair and reasonable.

• [18] Section 564(3) of the Industrial Relations Act 2016 (Qld) (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.

• [19] Although the Suspension Decision is dated 22 February 2022, it is not entirely clear when the Decision was given to the Appellant. The Appellant submits that on or about 24 January 2022, she realised she was unable to access her work emails and was advised that the Principal of Bajool State School had disabled her work email account.[10]

• [20] The Appellant contends that after learning she had been suspended without remuneration, she made a request for the corresponding notice, including on 17 March 2022 when she sent an email to the Department.[11] The Appellant received the Suspension Decision on 21 March 2022.[12]

• [21] The Respondent has not presented any submissions with respect to the appeal being filed out of time and has not indicated that it objects to the hearing and determination of the appeal. Regardless, I accept the Appellant's explanation for any delay, including the contribution of the Respondent's conduct and will therefore proceed to decide this appeal pursuant to s 564(2) of the IR Act.

• [22] 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".

• [23] 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.

• [24] 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.

• [25] The relevant principles in considering whether a decision is 'unreasonable' were enunciated by Ryan J in Gilmour v Waddell & Ors (emphasis added, citations removed):[13]

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.

• [26] I issued a Directions Order on 4 April 2022 inviting the parties to file written submissions. Pursuant to that Directions Order, the Appellant was afforded the opportunity to file written submissions in support of the Appeal Notice by 4:00pm on 11 April 2022. The Appellant did not file her submissions on time and did not request an extension of time before that due date.

• [27] In response to a follow-up email from the Industrial Registry, the Appellant filed a "summary of the important facts" on 13 April 2022. Although that material was filed late, I have taken it into consideration.

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

• [29] 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 appealed against was fair and reasonable so I will instead refer only to the parties' key positions in my consideration of the appeal.

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

• [31] 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."

• [32] 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.

• [33] 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).

• [34] 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".

• [35] I have discerned from the Appellant's submissions that she contends the Suspension Decision is unfair and unreasonable because:

• the Respondent initially informed the Appellant she would be suspended with normal remuneration; and

• there was a delay in the Appellant receiving the Suspension Decision; and

• the Appellant was issued with an overpayment notice.[14]

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

• [37] The Appellant contends it is not fair or reasonable to suspend her without remuneration because she was first informed she would be suspended with normal remuneration.[15]

• [38] In correspondence dated 21 January 2022, Ms Gillies-Day advised the Appellant:

In the meantime, I have decided to suspend you from duty on normal remuneration. Your suspension will take effect immediately from the date of this letter, at this stage, will remain in place until 20 April 2022.

Proposed suspension without normal remuneration (i.e. without pay)

I am also giving consideration to whether you should be suspended without pay pursuant to section 137(4) of the Act.

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.

If you would like to respond to why you should not be suspended without pay, please submit your response in writing. You will be afforded 7 calendar days to respond, and accordingly, your response should be provided no later than close of business on Thursday 27 January 2022.

On receipt and consideration of your response, I will determine whether to suspend you without pay. If you do not respond within the required timeframe, I will make a decision based on the information currently available to me.

You will remain on suspension with full pay until I have considered your response and made a determination as to whether to suspend you from duty without pay. You will be provided with further correspondence to advise you of my decision.

• [39] Upon review of the above excerpt, I note Ms Gillies-Day advised the Appellant she would be suspended on normal remuneration that "at this stage" would remain in place until 20 April 2022. That comment clearly indicates that the arrangement is subject to change prior to 20 April 2022. That interpretation is supported by Ms Gillies-Day's subsequent indication that she is giving consideration to suspending the Appellant without remuneration and that she would determine that matter after the Appellant had an opportunity to formally respond - i.e., shortly after the seven days the Appellant was given to respond.

• [40] Ms Gillies-Day clearly advised that upon receipt of the Appellant's response and following consideration, she would proceed to determine whether to suspend the Appellant without remuneration and that the Appellant would only remain on full pay until that determination was made.

• [41] Upon review of the entire correspondence and the context within which it was issued, I find it was not unfair nor unreasonable for the decision-maker to make the decision to suspend the Appellant without remuneration at the time she did.

• [42] The Appellant contends the Suspension Decision is not fair or reasonable because she did not receive the Decision until considerable time after it was issued and has also been issued with an overpayment notice and request to repay.[16] The Appellant presented the following background of events:

• on 21 January 2022, the Department issued an email advising the Appellant she was suspended on normal remuneration - however, the Appellant did not receive this email until 24 January 2022 due to being unable to login to her work email account;

• on 24 January 2022, the Department's IT Helpdesk advised the Appellant that the Principal of Bajool State School had contacted them and asked for the Appellant's email password to be reset;

• on 9 February 2022, the Appellant realised she was again unable to login to her work email account - the Department's IT Helpdesk advised the Principal had made a request to disable the Appellant's work email address and to have the emails forwarded to the Principal;

• on 7 March 2022, the Appellant was expecting to receive another pay advice to her personal email address that did not arrive;

• on 9 March 2022, the Appellant contacted the Payroll Office to enquire about the missing pay advice and was verbally advised she had been suspended without pay effective 22 February 2022;

• on 16 March 2022, the Appellant received an email from Queensland Education Payroll Services stating they had overpaid her $416.02 and requested that amount be repaid; and

• on 21 March 2022, the Appellant received an email from the Covid Compliance Team with a copy of the Suspension Decision dated 22 February 2022.[17]

• [43] I accept the chronology summarised at [42] is accurate and note the Respondent did not object to that chronology.

• [44] I emphasise that the decision subject of this appeal is the Suspension Decision.

• [45] It is clear the Respondent has made an administrative error in not issuing the Suspension Decision to the Appellant's personal email address after it had blocked her from accessing her work email address. Further, the Respondent has made an apparent error with respect to the overpayment.

• [46] Neither of the errors are the fault of the Appellant. I am concerned the errors occurred, because it is likely the impacts of being suspended without pay have been exacerbated by the fact the Appellant was not made aware she had been suspended without pay and then further by the Respondent's overpayment error.

• [47] The prejudice to be suffered by the Appellant in needing to repay the amount of $416.02 is more significant than the prejudice to the Respondent because the Appellant has been suspended without pay and it was the Respondent's conduct that resulted in failure to notify the Appellant she had been suspended without pay in a timely manner.

• [48] Although regrettable, I find those errors to be administrative in nature and not grounds that render the Suspension Decision unfair nor unreasonable. Nevertheless, I would encourage the Respondent to either waive the overpayment in light of the fact the Appellant was not at that time aware she was suspended without pay or enter into a reasonable payment arrangement with the Appellant to afford her the opportunity to repay in instalments. That is not a decision that I can impose, however it is a pathway forward that I would encourage the Respondent to consider.

• [49] Although the Appellant received the Suspension Decision late and there has been an overpayment error, the Suspension Decision itself is the subject of this appeal and I do not accept those administrative errors render the Suspension Decision to be unfair or unreasonable.

• [50] The Respondent referred to and provided a copy of a letter from Red Union dated 27 January 2022. The Appellant did not refer to nor provide submissions with respect to this correspondence. The letter broadly pertains to consultation requirements, risk assessments and asks several questions of the Respondent.

• [51] Even though the Appellant did not present the Red Union's correspondence in support of her appeal, the Respondent addressed the correspondence appropriately at [14] and [24]-[26] of its submissions filed 19 April 2022 and I agree with the reasoning therein.

• [52] The Respondent is not responsible for allaying the Appellant's concerns or anxieties about receiving the COVID-19 vaccine. Significantly, the Appellant did not apply for an exemption against the requirements under the Direction. 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 she is suspended is not appropriate or reasonable in the circumstances.

• [53] 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.[18]

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

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

• [56] The reasons for why the Appellant takes issue with the Direction indicate 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.

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

• [58] 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.

• [59] 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.

• [60] 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.

• [61] In correspondence dated 21 January 2022, Ms Gillies-Day advised the Appellant, "I am of the reasonable view that you may be liable to discipline under a disciplinary law."[19]

• [62] 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.[20]

• [63] 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.

• [64] 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, 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.[21]

• [65] 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.

• [66] The correspondence from Ms Gillies-Day dated 21 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."[22] 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."[23]

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

• [68] 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.

• [69] 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.

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

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.[24]

• [71] Further, the Respondent's submissions provide:

...while it is acknowledged the suspension without pay will have a financial impact on Ms Tribe, 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;[25]

• [72] I am satisfied the Respondent complied with Directive 16/20.

• [73] 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.

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

• [75] 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, 19 April 2022, 1 [6].

[4] Letter from Ms G. Gillies-Day to the Appellant, 21 January 2022.

[6] Letter from Mr C. Dekker, Red Union to Ms G. Gillied-Day, 27 January 2022.

[7] Letter from Ms G. Gillies-Day to the Appellant, 22 February 2022.

[8] Letter from Director, Payroll Services to the Appellant, 16 March 2022.

[11] Respondent's Submissions, 19 April 2022, 3 [20].

[12] Appeal Notice, 31 March 2022, Schedule.

[13] [2019] QSC 170, [207]-[210], citing Minister for Immigration and Citizenship v Li [2012] HCA 61; (2013) 249 CLR 332, [63]-[76].

[14] Appellant's Submissions, 13 April 2022.

[16] Appellant's Submissions, 13 April 2022.

[17] Email from Appellant to Industrial Registry, 13 April 2022.

[18] [2022] QIRC 002.

[19] Letter from Ms G. Gillies-Day to the Appellant, 21 January 2022.

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

[21] Letter from Ms G. Gillies-Day to the Appellant, 22 February 2022, 2.

[22] Letter from Ms G. Gillies-Day to the Appellant, 21 January 2022, 2.

[24] Letter from Ms G. Gillies-Day to the Appellant, 22 February 2022, 2.

[25] Respondent's Submissions, 19 April 2022, 4 [28]e).