Bowcock v State of Queensland (Department of Education)

Case [2024] QIRC 28


QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Bowcock v State of Queensland (Department of Education) [2024] QIRC 28

PARTIES:

Bowcock, Jon
(Appellant)

v
State of Queensland (Department of Education)
(Respondent)

CASE NO:

PSA/2022/896

PROCEEDING:

Public Service Appeal - Appeal against a suspension without pay decision

DELIVERED ON:

HEARING DATE:

9 February 2024

On the papers

MEMBER:

HEARD AT:

O'Connor, VP

Brisbane

ORDER:

1. Pursuant to s 562A(3) of the Industrial Relations Act 2016, I decline to hear the appeal.

CATCHWORDS:

PUBLIC SERVICE - EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY - PUBLIC SERVICE APPEAL - where appeal against a disciplinary decision - where suspension without remuneration for a period of time - where the appellant was suspended without remuneration for not complying with Employment Direction 1/22 - COVID-19 Vaccinations - where appellant did not apply for an exemption from the application of the direction - where appellant filed appeal out of time - where appellant submits that decision is unfair and unreasonable - where Commission may decide not to hear particular public service appeals

LEGISLATION:

Industrial Relations Act 2016 (Qld), s 562A, s 562B
Human Rights Act 2019 (Qld)
Information Privacy Act 2009 (Qld)
Privacy Act 1988 (Cth)

Department of Education Employment Direction 1/22 - COVID-19 Vaccinations

CASES:

Allison v State of Queensland (Department of Education) [2022] QIRC 152
Bakhash v State of Queensland (Department of Education) [2022] QIRC 362
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Carr v State of Queensland (Department of Education) [2022] QIRC 188
Currie (Murray) v State of Queensland (Department of Education) [2022] QIRC 269
Elliott v State of Queensland (Queensland Health) [2022] QIRC 332
Erhardt v Goodman Fielder Food Services Limited (1999) 163 QGIG 20
Gorry v State of Queensland (Department of Education) [2022] QIRC 196
Huntington v State of Queensland (Queensland Health) [2022] QIRC 290
Mocnik & Others v State of Queensland (Queensland Health) [2023] QIRC 058
Nicholas v State of Queensland (Department of Education) [2022] QIRC 157
Nuske v State of Queensland (Department of Education) [2023] QIRC 199
Page v John Thompson and Lesley Dwyer, As Chief Executive Officer, West Moreton Hospital and Health Service [2014] QSC 252
Prentis v State of Queensland (Department of Education) [2022] QIRC 212
Rossiter v State of Queensland (Department of Education) [2024] QIRC 025
Schimke v State of Queensland (Department of Education) [2022] QIRC 136
Tadeo v State of Queensland (Department of Education) [2022] QIRC 177
Thorley v State of Queensland (Department of Education) [2022] QIRC 133
Tilley v State of Queensland (Queensland Health) [2023] QIRC 262
Tribe v State of Queensland (Department of Education) [2022] QIRC 203

Reasons for Decision

Background

  1. Mr Jon Bowcock ('the Appellant') is employed by the State of Queensland ('Department of Education') ('the Department/Respondent') as a teacher at Coombabah State School.

  2. The Appellant is appealing a decision to not reimburse his remuneration for a period of time that he was suspended without pay ('Reimbursement Decision') as follows:

    A reduction in remuneration from B03-04 to B03-03,…

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Details
AGLC
Bowcock v State of Queensland (Department of Education) [2024] QIRC 28
Case
[2024] QIRC 28
Decision Date

CaseChat Overview and Summary

In Bowcock v State of Queensland (Department of Education), the appellant contested a disciplinary decision by the Department of Education to suspend him without remuneration for not complying with Employment Direction 1/22, which mandated COVID-19 vaccinations for employees. The appellant did not apply for an exemption from the direction and filed his appeal out of time. The Queensland Industrial Relations Commission (QIRC) was tasked with deciding whether the disciplinary decision was fair and reasonable.

The central legal issue before the QIRC was whether the Employment Direction 1/22 was lawful and reasonable, and if the appellant's suspension without remuneration was justified. The QIRC considered the appellant's failure to provide evidence of vaccination status, which the Commission found to be a serious act of insubordination. The Commission also examined whether the decision was procedurally fair, taking into account the appellant's opportunity to respond to the allegations and make submissions on the proposed penalty.

The QIRC found that the Employment Direction 1/22 was both lawful and reasonable, a finding supported by numerous previous cases. Given the overwhelming legal precedent, the Commission concluded that the appellant's non-compliance with the direction justified the disciplinary action. The QIRC further noted that the appellant had not provided any unique arguments in support of his appeal and did not present any compelling mitigating factors that would warrant a different outcome. Consequently, the QIRC held that the decision was fair and reasonable and declined to hear the appeal.

ORDERS:
1. Pursuant to s 562A(3) of the Industrial Relations Act 2016, the Commission declines to hear the appeal.

Orders

Orders of the court

1. Pursuant to s 562A(3) of the Industrial Relations Act 2016, I decline to hear the appeal.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The Appellant has failed to make any unique argument in support of his Appeal despite 'overwhelming legal precedent and accepted mainstream medical and scientific opinions' for his non-compliance with a lawful direction.[11][11] Tilley v State of Queensland (Queensland Health) [2023] QIRC 262, [33].Whether decision is fair and reasonable The Respondent submits the Direction was found to be both lawful and reasonable in other matters before the Commission.[12] The revocation of the Direction by the Respondent does not alter that finding.[13][12] Thorley v State of Queensland (Department of Education) [2022] QIRC 133; Schimke v State of Queensland (Department of Education) [2022] QIRC 136; Allison v State of Queensland (Department of Education) [2022] QIRC 152; Nicholas v State of Queensland (Department of Education) [2022] QIRC 157; Tadeo v State of Queensland (Department of Education) [2022] QIRC 177; Carr v State of Queensland (Department of Education) [2022] QIRC 188; Gorry v State of Queensland (Department of Education) [2022] QIRC 196; Tribe v State of Queensland (Department of Education) [2022] QIRC 203; Prentis v State of Queensland (Department of Education) [2022] QIRC 212; Currie (Murray) v State of Queensland (Department of Education) [2022] QIRC 269.[13] Respondent's submissions filed 30 October 2023, [21]. Failure to comply with a lawful and reasonable direction is a serious act of insubordination and failing any compelling mitigating factors, would justify termination of employment.[14] In this matter the Respondent imposed a lesser sanction and enabled the Appellant to continue his employment.[15][14] Bakhash v State of Queensland (Department of Education) [2022] QIRC 362, [27].[15] Huntington v State of Queensland (Queensland Health) [2022] QIRC 290, [46]. The Appellant was only required to provide evidence of vaccination status, and this was not inconsistent with the Privacy Act 1988 (Cth) or the Information Privacy Act 2009 (Qld). In addition, the Appellant's human rights were considered as the Respondent had a public interest in ensuring employees complied with lawful and reasonable directions. As determined in Mocnik and others the Commission has repeatedly found vaccination directives are not inconsistent with the Human Rights Act 2019.[16][16] [2023] QIRC 058; Bakhash v State of Queensland (Department of Education) [2022] QIRC 362; Elliott v State of Queensland (Queensland Health) [2022] QIRC 332. The Reimbursement Decision issued to the Appellant was procedurally fair. Similar to the decision in Nuske v State of Queensland (Department of Education),[17] the Appellant was provided with the Allegation including particulars and provided with an opportunity to respond and make submissions in respect of the proposed penalty.[18] Section 562B of the IR Act provides the appeal must be decided by the Commission reviewing the decision appealed against and the purpose of the appeal is to decide whether the decision appealed against was fair and reasonable.[19][19] Page v John Thompson and Lesley Dwyer, As Chief Executive Officer, West Moreton Hospital and Health Service [2014] QSC 252, [60] to [61] (Byrne SJA) as to the former, equivalent provisions in s 201 of the Public Service Act 2008.

Ratio Decidendi

Legal Principle Established

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