Argent v State of Queensland (Department of Education) - [2022] QIRC 474

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Argent v State of Queensland (Department of Education) [2022] QIRC 474
PARTIES:	Argent, Carolyn Maree (Appellant) v State of Queensland (Department of Education) (Respondent)
CASE NO.:	PSA/2022/920
PROCEEDING:	Public Service Appeal - Fair treatment decision
DELIVERED ON:	7 December 2022
HEARING DATE: MEMBER:	On the papers Pidgeon IC
DATES OF WRITTEN SUBMISSIONS:	Respondent's submissions 19 October 2022 Appellant's submissions in reply 2 November 2022 Appellant's further submissions 16 November 2022 Respondent's submissions in reply 24 November 2022
ORDER:	*Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016, the decision appealed against* is confirmed.
CATCHWORDS:	PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – PUBLIC SERVICE APPEAL – Appellant employed by the Department as a Senior Teacher – by cl 5 of the Department of Education – Employment Direction 1/21 - COVID‑19 Vaccinations, the Appellant was required to receive a first dose of a COVID‑19 vaccine by 17 December 2021 and to provide evidence of such vaccination – Appellant failed to comply with the Direction – Appellant suspended without remuneration – Appellant's suspension without remuneration subsequently ceased – decision that Appellant would not be repaid remuneration for period of suspension without remuneration – Appellant appealed against that decision – whether decision was fair and reasonable – decision fair and reasonable – decision confirmed
LEGISLATION AND OTHER INSTRUMENTS:	COVID-19 Vaccination Requirements for Workers in a high-risk setting Direction COVID-19 Vaccination Requirements for Workers in a high-risk setting Direction (No.2) Department of Education - Employment Direction 1/21 - COVID-19 Vaccinations cls 1, 2, 3, 4, 5, 8 Employment Direction 1/22 - COVID-19 Vaccinations Industrial Relations Act 2016 ss 562B, 562C Public Service Act 2008 ss 137, 194 Public Service Suspension Directive 16/20 cl 6
CASES:	Graf and Ors v State of Queensland (Department of Education) [2022] QIRC 451 Winter v State of Queensland (Department of Education) [2022] QIRC 350

Reasons for Decision

Introduction

Ms Carolyn Argent (the Appellant) is a Senior Teacher employed by the State of Queensland, Department of Education (the Respondent) at Koumala Primary School.
This fair treatment appeal relates to the Respondent's decision not to backpay the Appellant for the period during which she was suspended without normal remuneration for failing to follow a lawful direction to be vaccinated against COVID-19.

The Direction and the Suspension
Direction 1/21

On 11 December 2021, the Chief Health Officer of Queensland issued the COVID-19 Vaccination Requirements for Workers in a high-risk setting Direction (the First CHO Direction). Shortly thereafter on 16 December 2021, the Director-General of the Department issued the Department of Education - Employment Direction 1/21 - COVID-19 Vaccinations (Direction 1/21).
Direction 1/21 relevantly provides:

1.       Audience
Department Wide (excluding Office of Industrial Relations)
2.       Compliance
Compliance with this direction is mandatory.
3.       Purpose
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Argent v State of Queensland (Department of Education)

Details

AGLC: Argent v State of Queensland (Department of Education) [2022] QIRC 474
Case: [2022] QIRC 474
Decision Date: 7 December 2022

CaseChat Overview and Summary

In the matter of Argent v State of Queensland (Department of Education), the appellant, Ms Argent, challenged the respondent's decision not to repay her for the period during which she was suspended without pay due to non-compliance with a COVID-19 vaccination requirement. The dispute arose from a Direction issued by the Department of Education, which mandated COVID-19 vaccinations for employees. Ms Argent, a Senior Teacher, failed to comply with this Direction, leading to her suspension without pay. After the suspension ended, Ms Argent sought reimbursement for the unpaid period but was informed that no reimbursement would be provided, as she was not available to work due to her non-compliance with the vaccination requirement.

The court was tasked with determining whether the decision not to repay Ms Argent for the unpaid suspension period was fair and reasonable. This required an analysis of the relevant clauses in the Public Service Commission's Suspension Directive and the implications of the COVID-19 vaccination Direction. The court also needed to consider whether Ms Argent had any valid grounds for her privacy concerns regarding the vaccination information collection process.

The court found that Ms Argent was not eligible for reimbursement under Clause 6.10 of the Suspension Directive, which stipulates that employees are not reimbursed if they were not available to work for reasons other than suspension. The court reasoned that Ms Argent's decision not to inform the Department of her vaccination status effectively made her unavailable to work, as the Department was precluded from allowing her to enter the workplace without vaccination confirmation. The court confirmed the decision not to reimburse Ms Argent, citing similar reasoning in Graf and Winter cases.

In conclusion, the court upheld the decision not to repay Ms Argent for the unpaid suspension period. The order confirmed the decision appealed against, in accordance with section 562C(1)(a) of the Industrial Relations Act 2016.

Orders

Orders of the court

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Subsequently, Direction 1/21 and the CHO Direction were both revoked on 30 June 2022.The suspension reimbursement decision On 24 June 2022, the Appellant wrote to the Department's COVID Compliance Team to enquire as to whether she would be repaid for the period during which she was suspended without pay. On 7 September 2022, the Department's COVID Compliance Team responded to the Appellant's enquiry and said:Hi CarolynThank you for your enquiry. The correspondence you received on 24 June 2022 notifying you that your suspension would cease clarified that you would not be repaid for the period you were suspended without pay. An extract of that correspondence is provided below:"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, 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 Relation Commission Industrial Registry will be able to provide further information about public service appeal procedures… In its submissions filed on 19 October 2022, the Respondent acknowledges that the above email from the COVID Compliance Team 'refers to an excerpt from the Suspension Reimbursement Decision that the Appellant did not receive, as the email suggests, in the correspondence dated 24 June 2022'.[2][2] Respondent's submissions filed 19 October 2022 [32]. Ms Argent filed her appeal on 28 September 2022 indicating that she was appealing a suspension without pay decision. However, in the schedule attached to her appeal, Ms Argent says 'I am appealing the decision to not back pay me after unpaid suspension for these reasons…'. In the Respondent's submissions filed on 19 October 2022, it notes the following ambiguity in Ms Argent's appeal notice: The Respondent therefore made a jurisdictional objection and submitted that the suspension reimbursement decision could not be appealed under s 194(1) of the PS Act as a suspension without pay decision. In her reply submissions of 2 November 2022, the Appellant responded to the jurisdictional objection by submitting the following:I observe the jurisdictional issues raised by the respondent in their submissions. I now understand am aware that the decision being appealed against was not a suspension without pay decision and this in fact occurred on 27 January 2022, and the window for appeal for that decision has long since passed.However, I am trying to appeal the outcome of the decision not to provide me with backpay for the suspension without pay period, which was provided with this appeal notice. With this in mind, I would ask the Commission to please consider my matter as a fair treatment decision under s 194(1)(eb).[4][4] Appellant's submissions in reply filed 2 November 2022 [2]-[3].

Ratio Decidendi

Legal Principle Established

Clause 6 of 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. In deciding this appeal, I have considered a similar case decided by Merrell DP in Graf and Ors v State of Queensland (Department of Education).[13] In that case, His Honour said: I understand that Ms Argent says it is unfair to assume she is not vaccinated and that she did not provide her vaccine status to the Department because she believed she was entitled to keep this information private under the Privacy Act 1998 (Cth). However, in the absence of advice that she was vaccinated, the Department could not allow her to enter her workplace. This is because the CHO Direction precluded the Department from allowing people to attend high-risk settings unless they were vaccinated. The employee survey was the mechanism for the Respondent to gather that information and Ms Argent did not reply to the request for information made through the survey. If Ms Argent was indeed vaccinated but was concerned about the method being used to gather the information and its affect on her privacy, it was open for her to seek an avenue to provide this information. In the absence of advice that she was vaccinated, she could not attend the workplace. I find myself arriving at the same conclusion Merrell DP reached in Graf and in Winter. Even if she had not been suspended from duty and was willing and available to work, Ms Argent could not have attended her workplace due to her decision not to inform the Department of her vaccination status. Clause 6.10 applies and Ms Argent is not eligible to be reimbursed. For the reasons I have given, I confirm the decision not to reimburse Ms Argent for the period she was suspended without remuneration.Order I make the following order:Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016, the decision appealed against is confirmed.