Winter v State of Queensland

Department of Education - Employment Direction 1/21 - COVID-19 Vaccinations, cl 1, cl 2, cl 3, cl 4 and cl 5

Industrial Relations Act 2016, s 562B and s 562C

Public Health Act 2005, s 362B

Public Service Act 2008, s 137 and s 187

Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203; (2020) 305 IR 311

• [1] Ms Hannah Winter is employed by the State of Queensland, through the Department of Education ('the Department'), as an Administration Officer, classification AO2. Ms Winter is employed at the Harristown State School ('the school').

• [2] By virtue of cl 5 of the Department of Education - Employment Direction 1/21 - COVID‑19 Vaccinations dated 16 December 2021 and issued by the Director-General of the Department ('the Departmental Direction'), Ms Winter was required to receive a first dose of a COVID-19 vaccine by 17 December 2021 and to provide evidence of such vaccination.

• [3] Ms Winter failed to comply with the Departmental Direction.

• [4] Ms Winter was then suspended from duty with remuneration from on or about 3 February 2022. Subsequently, Ms Winter was, pursuant to s 137(4) of the Public Service Act 2008 ('the PS Act'), suspended without remuneration. That suspension was for the period of 15 February 2022 until 30 June 2022.

• [5] Ms Winter's suspension was subsequently ceased. Ms Winter returned to work as from the first day of duty Term 3, 2022. Ultimately, on 28 July 2022, a disciplinary process was commenced against Ms Winter. The disciplinary process against Ms Winter has not been completed.

• [6] In the letter dated 24 June 2022, notifying Ms Winter of the decision to cease her suspension, Mr David Miller, Executive Director, relevantly stated:

If you have been suspended without remuneration (pay) at any stage throughout this process, I confirm that you will not be repaid for the period you were suspended without pay. This is in accordance with Clause 6.10 of the Public Service Commission's Suspension Directive 16/20 on the basis that you were not available to work during the period of suspension, as you were not compliant with the Direction,[1] and for the reasons outlined in the letter advising you of the decision to suspend you without pay.

If you believe that the decision is unfair and unreasonable, you may lodge an appeal under the appeal provisions of the Public Service Act 2008. The Queensland Industrial Relations Commission Industrial Registry will be able to provide further information about public service appeal procedures (www.qirc.qld.gov.au; Tel: 1300 592 987).

• [7] By appeal notice filed on 6 July 2022, Ms Winter appeals against Mr Miller's decision that she will not be repaid for the period she was suspended without remuneration as from 15 February 2022 until the date of her return to work ('the decision').

• [8] The purpose of an appeal pursuant to ch 7, pt 1 of the PS Act is to decide whether the decision appealed against was fair and reasonable.[2] The issue for determination in such an appeal is whether the decision appealed against was fair and reasonable.[3]

• [9] For the reasons that follow, the decision was fair and reasonable.

• [10] It is instructive to set out part of Ms Winter's written submissions in some detail. Ms Winter relevantly submits:

1. It is my submission that there is a lack of fairness in disclosing decisions regarding repayment, where no consultation period and opportunity for staff to be informed of the implications of Clause 6.6 or 6.10 occurred prior to the announcement of this internal decision.

1. It is my submission that it is unreasonable for the respondent to state that staff were unable to attend work due to reasons outside the scope of their suspensions, with no determination and clarification on what those factors are for each individual circumstance. I was directed to be available at all times, which contradicts the respondent's reasoning that I made myself unavailable. All reasons provided in the 'Decision on Suspension without Pay' (Appendix C) email fall within the scope of suspension, with no external reasons detailed publicly or privately by the respondent.

1. It is my submission that it is unreasonable for the respondent to determine that the lawful restriction of entry to a high risk setting is the determining factor in declining repayment of benefits under Clause 6.10. The CHO Direction (Covid-19 Vaccination Requirements for workers in a high‑risk setting Direction, Queensland Health), states that all workers in high‑risk settings are ‑"prevent(ed) entry to a high risk setting unless the worker complies with the COVID‑19 vaccination requirements". This CHO Direction was the basis for the implementation of Employment Direction 1/21- COVID-19 Vaccinations.

1. In an email from Mr David Miller dated 12 Jan, 2022 (Appendix D), Mr Miller states that "On that basis [breach of Department of Education Employment Direction 1/21 - COVID‑19 Vaccinations], you are not lawfully able to attend the workplace to carry out and perform the functions of your role due to the operation of COVID-19 Vaccination Requirements for Workers in a High-Risk Setting Direction [CHO Direction] combined with your breach of the Direction" (emphasis mine). It is my submission that my inability to attend my workplace due to the CHO Direction falls within the scope of suspension and has therefore unreasonably been applied as a reason 'other than' my suspension in determining repayment eligibility.

1. Due to the cancellation of suspension on June 30, 2022 corresponding with the revocation of the COVID-19 Vaccination Requirements for Workers in a high risk-setting Direction (No. 2)[which superseded the CHO Direction in March 2022], it is reasonable to concur that the two are directly correlated. This is also inferred in email correspondence from Anne Crowley dated 27 July 2022 (Appendix E), stating "The Direction was revoked effective 1:00am on Thursday 30 June 2022 after the announcement of the revocation of the COVID‑19 Vaccination Requirements for Workers in a high risk-setting Direction (No. 2) (Public Health Direction)"

1. The timeline provided in Ms Crowley's email (section 9-15) shows direct, correlated implications of the CHO Public Health Directions (superseded and No.2) to my suspension. The implementation of the CHO Direction led to the enactment of the Education Employment Direction, leading to my perceived breach of this direction and resulting in my suspension. Had no CHO Direction been announced, I would have not been placed on suspension at all.

1. Mr Millers [sic] 12 January email (Appendix D), states that "Section 137(1)(b) of the Public Service Act 2008 (the Act) provides that an employee may be suspended from duty if the chief executive reasonably believes the employee is liable to discipline under a disciplinary law... I am of the reasonable view that you may be liable to discipline under a disciplinary law and I have decided to suspend you from duty on normal remuneration." Had my suspension continued beyond June 30, 2022 to the finalisation of my disciplinary proceedings, this would confirm that the suspension was solely due to disciplinary action under the Public Service Act 2008 Section 137(1)(b). The precedent now set- that as of July 11 my suspension was cancelled and I was directed to return to duties whilst still being subject [sic] disciplinary proceedings- indicates that the CHO Directive implementation and revocation are the principal factors for decisions to enact and cancel my suspension, and therefore my suspension was not solely a "work performance matter" (Appendix F) under the Public Services Act. . If the CHO Direction was unrelated to the scope of and reasons for suspension, the revocation of the CHO Direction should have had no bearing on my suspension end date, therefore it is reasonable to concur that the two are directly correlated.

1. Had the CHO not restricted workplace access to unvaccinated staff, I believe I would have been able to attend work at full capacity whilst undergoing a disciplinary process. As it is now acceptable to be liable to disciplinary action for breach of the Education Directive whilst attending my place of work, this should have been applicable from the 12 January also.

1. The above issue also raises inconsistencies with the Feb 15 email (Appendix C) stating ''it is not a responsible or appropriate use of public funds to allow you to continue to be paid while this process is underway." The process is still underway, with an email dated 28 July 2022 confirming the commencement of my disciplinary proceedings. I was not under confirmed proceedings during my suspension, yet as of 28 July I am, all while I am entitled to work and remuneration. The respondent should provide clear reasoning as to why the eligibility to remuneration while under Disciplinary proceedings has changed.

1. Provisions were made by Queensland Health to enable unvaccinated staff to work under specific, temporary circumstances where critical workforce shortages were experienced. The use of PPE, RAT tests and risk assessments was implemented, which enabled unvaccinated workers to attend high-risk settings, meaning it was lawfully possible at all times. I was willing to accept responsibility for employing additional safety measures, and assume the risk of attending a high‑risk setting, had I been requested to return to work at any time.

1. The Department acknowledges no decision on discipline has been made against Ms Winter that resulted in termination of her employment. The Department suspended Ms Winter from duty on the basis there was a reasonable belief she was liable to discipline under a disciplinary law pursuant to section 137(1)(b) of the Public Service Act 2008.

1. Ms Winter chose not to comply with the Direction 1/21. She did not advise the Department she intended to become vaccinated against COVID-19 at any time between December 2021 and June 2022. In refusing to receive a COVID-19 vaccination, Ms Winter failed to comply with a lawful and reasonable direction for a period of over six months.

1. Although Ms Winter claims she was entitled to a medical exemption, she did not hold an exemption from the requirements of the Direction 1/21 during her period of suspension without pay. She did not provide any evidence of a medical condition which meant she was unable to be safely administered the current vaccines. In the absence of a valid exemption from the Direction 1/21, Ms Winter was not lawfully able to attend her workplace to perform her usual duties as an Administration Officer.

1. Ms Winter claims there was 'no other reason for [her] inability to attend work' other than being suspended. This is not correct. Ms Winter was unable to work because she was unable to attend a high-risk setting while she remained unvaccinated against COVID-19. In choosing not to be vaccinated, Ms Winter made herself unavailable to work.

1. As an Administration Officer, Ms Winter must physically attend Harristown State School to carry out her duties. It was not reasonable for Ms Winter to be placed on flexible working arrangements to work remotely as an alternative to complying with her obligations under the Direction 1/21. That would have not been an appropriate solution nor fair on her colleagues. Further, even if she were permitted to perform her duties from home, there would have inevitably been times where she was required to attend the school and intermingle with other staff members and students to fulfill her duties.

1. To the extent Ms Winter submits it was lawfully possible for her to work if she was permitted to use PPE, rapid antigen tests and further risks assessments, Ms Winter is not entitled to determine how she will comply with the Direction 1/21. Direction 1/21 did not provide for exceptions in respect of employees who return negative COVID-19 tests.

1. Mr Gall[4] considered the decision to suspend Ms Winter without normal remuneration to be reasonable and justified noting the Department is a government agency with statutory financial accountability obligations. Although the decision to suspend Ms Winter without pay had a financial impact on her, she was made aware of the consequences of failing to comply with the Direction 1/21. Further, Mr Gall considered his statutory obligation to manage public resources effectively, responsibly and in a fully accountable way. Mr Gall did not consider it was an appropriate use of public monies for Ms Winter to remain on suspension with remuneration for any further period.

1. Mr Gall 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. Ms Winter is an Administration Officer. It was not for the Department to undertake a state-wide search of the public service to find another role Ms Winter could undertake. In circumstances where education settings had been deemed high-risk locations which she would be unable to enter from 17 December 2021, it was entirely reasonable for Mr Gall to determine there was no reasonable alternative role or reasonable adjustments available which appropriately managed the risk that arises from Ms Winter's non-compliance with Directive 1/21.

1. The Direction 1/21 mandates the COVID-19 vaccine for employees. Ms Winter exercised a choice to refuse the direction. The consequences of failing to be vaccinated are made clear at clause 9 of Direction 1/21 which states unvaccinated workers may not enter a high‑risk setting.

1. By choosing not to become vaccinated against COVID-19, Ms Winter made herself not available for work for reasons other than being suspended. Clause 6.10 applies and accordingly, Ms Winter is not entitled to be reimbursed for remuneration during the period of the suspension without pay.[5]

The relevant provisions of the applicable instruments

• [12] Clause 6 of Directive: 16/20 - Suspension directive ('the Suspension Directive') entitled 'Suspension without remuneration', relevantly provides:

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.

• 6.10 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.

• [13] On 11 December 2021, the COVID-19 Vaccination Requirements for Workers in a high‑risk setting Direction, issued by the Chief Health Officer, commenced operation ('the First CHO Direction').

• [14] Under the First CHO Direction, workers were not permitted to enter, remain in, work in, or provide services in a high-risk setting unless they were fully vaccinated.[6] A 'high‑risk setting' was defined as early childhood, primary and secondary educational settings, including schools.[7]

• [15] The Departmental Direction relevantly provided:

Department Wide (excluding Office of Industrial Relations)

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:

• 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. [8]

The CHO Direction captures many Department of Education workers (excluding OIR) as the CHO direction applies to all workers in a high-risk setting and prevents entry to a high-risk setting unless the worker complies with the COVID-19 vaccination requirements with some very limited exceptions.

This Direction applies to all Department of Education workers who attend a high-risk setting as part of their role or the services they provide.

This Direction also applies to identified staff within regional and central offices who are required to be present in a school as part of their work duties, i.e. where attendance at a school is necessary to fulfil the requirements of their job.

• [16] The First CHO Direction was replaced by the COVID-19 Vaccination Requirements for Workers in a high-risk setting Direction (No.2) ('the Second CHO Direction') effective from 4 February 2022. It also provided that workers were not permitted to enter, remain in, work in, or provide services in a high-risk setting unless they were fully vaccinated[9] and it also defined a 'high-risk setting' as early childhood, primary and secondary educational settings, including schools.[10]

• [17] Subsequently, the Director-General of the Department issued Employment Direction 1/22 - COVID-19 Vaccinations, effective 10 March 2022, which is not materially different to the Departmental Direction.

• [18] Ms Winter's appeal, that the decision is not fair and reasonable, is based on the following contentions:

• first, there was no consultation period and opportunity for staff to be informed of the implications of cls 6.6 or 6.10 of the Suspension Directive prior to the announcement of this internal (Mr Miller's) decision;

• secondly, it was unreasonable for the Department to state that staff were unable to attend work due to reasons outside the scope of their suspensions, with no determination and clarification on what those factors are for each individual circumstance;

• thirdly, it is unreasonable for the Department to determine that the lawful restriction of entry to a high risk setting is the determining factor in declining repayment of her remuneration pursuant to cl 6.10 of the Suspension Directive because, given the written reasons for her suspension as from 12 January 2022, her suspension was for reasons that included her inability to attend her workplace due to the (First) CHO Direction, therefore her suspension and the application of the (First) CHO Direction are one in the same such that her unavailability to attend work during the period of her suspension was not for other reasons;

• fourthly, she was directed to be available at all times during her suspension which contradicts the Department's reasoning she made herself unavailable; and

• fifthly, but for the Second CHO Direction restricting workplace access to unvaccinated staff:

• - she would not have been placed on suspension at all; and

• - she would have been able to attend work at full capacity, whilst undergoing a disciplinary process and, as it is now acceptable to be liable to disciplinary action for breach of the Departmental Direction whilst attending her place of work, this should have been applicable from the 12 January 2022.

• [19] In my opinion, none of these contentions persuade me that the decision is other than fair and reasonable.

• [20] First, there is no obligation on the Department to consult suspended employees about the effect of cl 6.10 of the Suspension Directive. The Suspension Directive is a statutory instrument, it had effect from 25 September 2020 and it applied as a matter of law from that date. Mr Miller was not developing or implementing a new policy or rule at a point in time after the introduction of the Departmental Direction. Mr Miller, in the decision, was applying the law as it stands.

• [21] Secondly, Ms Winter's submission that it is unreasonable for the Department to state that staff were unable to attend work due to reasons outside the scope of their suspensions, without looking at each individual circumstance, is misconceived. On the facts before the Department, as presented to me by both parties, the only reason that Ms Winter was unable to attend work as from 15 February 2022, for a reason other than her suspension, was due to the operation of the Second CHO Direction which, in turn, applied to Ms Winter because of her unvaccinated state. In her appeal notice, Ms Winter states that she has medical reasons for not being vaccinated, but has led no evidence that she has appealed a decision not to grant her an exemption.

• [22] Thirdly, the Departmental Direction cites the First CHO Direction as being the legal instrument prohibiting unvaccinated workers attending Departmental high risk settings. The Departmental Direction does not purport to be the source of power prohibiting unvaccinated workers attending Departmental high risk settings.

• [23] On the other hand, the Departmental Direction was a direction, separate to the First and Second CHO Directions, given to certain public service employees employed in the Department by the Chief Executive of the Department. The Departmental Direction was a lawful direction that public service employees employed in the Department, who fell within the scope of the First CHO Direction, had to be vaccinated as provided for in the Departmental Direction. Pursuant to s 187(1)(d) of the PS Act, a public service employee may be liable for discipline if the employee contravenes, without reasonable excuse, such a direction. Pursuant to s 137 of the PS Act, if the Chief Executive of the Department reasonably believes a public service employee is liable to discipline under a disciplinary law, then the employee may be suspended from duty, either with or without remuneration.

• [24] The First and Second CHO Directions were lawfully given by the Chief Health Officer pursuant to s 362B of the Public Health Act 2005. That section is contained in ch 8 ('Public Health Emergencies'), pt 7A ('Particular powers for COVID-19 emergency') of that Act. Section 362B provides:

(1) This section applies if the chief health officer reasonably believes it is necessary to give a direction under this section (a public health direction) to assist in containing, or to respond to, the spread of COVID-19 within the community.

(2) The chief health officer may, by notice published on the department's website or in the gazette, give any of the following public health directions-

(a) a direction restricting the movement of persons;

(b) a direction requiring persons to stay at or in a stated place;

(c) a direction requiring persons not to enter or stay at or in a stated place;

(d) a direction restricting contact between persons;

(e) any other direction the chief health officer considers necessary to protect public health.

(a) the period for which the direction applies; and

(b) that a person to whom the direction applies commits an offence if the person fails, without reasonable excuse, to comply with the direction.

• [25] Ms Winter was suspended without remuneration by virtue of a decision of the delegate of the Chief Executive of the Department which was made pursuant to s 137(4) of the PS Act. That decision was made, in part, due to the nature of the discipline to which the delegate reasonably believed Ms Winter was liable under a disciplinary law. That arose because Ms Winter failed to comply with the Departmental Direction to be vaccinated. However, the only reason Ms Winter was not available to work at the school during the period of her suspension, other than the fact of her suspension, was the application of the Second CHO Direction. The Second CHO Direction applied to Ms Winter due to her unvaccinated state and because of the nature of her workplace.

• [26] If, at a point in time, Ms Winter became vaccinated during the period of her suspension (and the suspension remained on foot) such that she was compliant with the Second CHO Direction and thereby not prevented from working at the school, then cl 6.10 of the Suspension Directive would not apply to her from that point in time because (in the absence of any other reason) the only reason she would have been unavailable for work was her suspension.

• [27] Fourthly, the author of the letter dated 15 February 2022, advising Ms Winter of the decision that she was suspended without remuneration, directed Ms Winter, in her role as a worker, not to attend any Department of Education high risk setting, including early childhood, primary and secondary educational settings. Furthermore, that letter provided:

You are required to make yourself available for contact by department officers during normal business hours while suspended from duty.

You are to notify the COVID Compliance Team immediately if:

(a) there are changes to your personal circumstances, including your vaccination status; or

(b) you will not be available to be contacted for more than three business days during the course of your suspension.

• [28] As is apparent from this letter, Ms Winter was expressly directed not to attend, in her role as a worker, any Departmental school. Further, contrary to Ms Winter's submissions, Ms Winter was not directed to be available at all times during her suspension. Rather, Ms Winter was directed to be contactable during normal business hours while she was suspended from duty. In addition, she was directed to inform the Department if her vaccination status changed at any time.

• [29] Fifthly, in relation to Ms Winter's last contentions referred to above, the plain fact is that the Second CHO Direction applied to her, due to her unvaccinated state, during her suspension from duty. That was the reason, other than her suspension, that Ms Winter was unavailable for work at the school during her suspension.

• [30] In my view, the Department's submissions are meritorious such that I consider the decision to be fair and reasonable. There are four reasons for this.

• [31] First, cl 6.10 of the Suspension Directive is located after cl 6.6 of that same Directive and, on any reasonable construction of the words used in those clauses, cl 6.6 must be read subject to cl 6.10.

• [32] Secondly, while Ms Winter remained unvaccinated, she could not, as a worker, enter the school at which she was employed. This was because of the independent application of the Second CHO Direction. Thus, the reason Ms Winter was not available to work during the period of her suspension without remuneration, other than her suspension, was the application of the Second CHO Direction. The reason the Second CHO Direction had that effect on Ms Winter's availability to work, during the period of her suspension without remuneration, was as a direct consequence of her unvaccinated state.

• [33] Thirdly, even though Ms Winter states that she made herself available for work at the school during the period of her suspension without remuneration, the undeniable fact is that she was not available for work at the school during the period of her suspension for a reason other than her being suspended. That was the result of the application of the Second CHO Direction. Ms Winter, by her own declaration to hold herself out as being available to work at the school during the period of her suspension without remuneration, could not alter the application and effect of the Second CHO Direction.

• [34] Fourthly, as I have stated above, if Ms Winter became vaccinated during the period of her suspension without remuneration, and that suspension remained on foot, such that she was compliant with the Second CHO Direction and not prevented from working at the school, then cl 6.10 of the Suspension Directive would not apply to her from the point in time of her being fully vaccinated, assuming there was no other reason for her unavailability to work.

• [35] Finally, as the Department submits, the person who made the decision to suspend Ms Winter without remuneration considered all reasonable alternatives, including alternative duties or adjustments, and that person was of the view that there was no reasonable alternative role or reasonable adjustments available. Ms Winter did not challenge that determination.

• [36] For these reasons, Mr Miller's decision was fair and reasonable.

• [37] For the reasons I have given, the decision was fair and reasonable and should be confirmed.

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

[1] This refers to the COVID-19 Vaccination Requirements for Workers in a high-risk setting Direction (No.2) ('the Second CHO Direction').

[2] Industrial Relations Act 2016 s 562B(3).

[3] Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203; (2020) 305 IR 311, [4]-[7].

[4] Mr Tim Gall, Executive Director, HR Shared Services.

[6] COVID-19 Vaccination Requirements for Workers in a high-risk setting Direction, cl 9.

[7] Ibid, sch 1 (definition of 'High-risk setting') and sch 2.

[9] The Second CHO Direction (n 1), cl 10.

[10] Ibid, sch 1 (definition of 'High-risk setting') and sch 2.