Luna v State of Queensland (Department of Education)

Luna, a senior teacher employed by the State of Queensland through the Department of Education at Harristown State School, was required to receive a first dose of a COVID-19 vaccine by 17 December 2021 as per clause 5 of the Department of Education – Employment Direction 1/21 – COVID-19 Vaccinations. When Luna failed to comply with this requirement, she was suspended without remuneration. Subsequently, the suspension without remuneration ceased, but the decision was made that Luna would not be repaid remuneration for the period of suspension. Luna appealed against this decision, arguing that it was not fair and reasonable.

The court had to determine whether the decision not to repay Luna for the period of suspension without remuneration was fair and reasonable. The key legal issues were whether the Department of Education was obligated to consult with suspended employees about the effect of clause 6.10 of the Suspension Directive, whether it was 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, and whether the Departmental Direction was a lawful direction. The court also had to consider the applicability of the First and Second Chief Health Officer (CHO) Directions and the provisions of the Public Service Act 2008 (PS Act).

The court found that the Department of Education was not obligated to consult suspended employees about the effect of clause 6.10 of the Suspension Directive, as the directive was a statutory instrument in effect from 25 September 2020. The court also found that it was not unreasonable for the Department to state that staff were unable to attend work for reasons outside the scope of their suspensions without looking at each individual circumstance, as the facts presented showed that the only reason for unavailability was due to the Second CHO Direction. The court concluded that the Departmental Direction was a lawful direction given by the Chief Executive of the Department, separate to the First and Second CHO Directions, and that it was a lawful direction for public service employees to be vaccinated as provided for in the direction. The court agreed with the findings of Deputy President Merrell in Winter v State of Queensland (Department of Education), and confirmed that the decision not to repay Luna for the period of suspension without remuneration was fair and reasonable.

ORDERS:
1. The decision appealed against is confirmed.