QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
Reasons for Decision
Background
Mr Ross Thorley ('the Appellant') is employed by the State of Queensland ('Department of Education') ('the Department') as a teacher at Merrimac State School.
The Appellant is appealing a decision to not reimburse his remuneration for a period that he was suspended without pay ('Reimbursement Decision') as follows:
A reduction in remuneration from ES4-02 to ES4-01 for a period of 18 weeks and a reprimand.
The Appellant did not comply with the Department of Education Employment Direction 1/22 - COVID-19 Vaccinations ('the Direction')[1] to receive or provide evidence of receiving two doses of a COVID-19 vaccination.
[1] On 16 December 2021 the Director-General issued Employment Direction 1/21- COVID-19 Vaccinations. On 10 March 2022 the Director General issued Employment Direction 1/22 - COVID 19 Vaccinations. The requirement to receive two doses of…
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- AGLC
- Thorley v State of Queensland (Department of Education) [2024] QIRC 26
- Case
- [2024] QIRC 26
- Decision Date
CaseChat Overview and Summary
The legal issues before the Commission included whether the Direction 1/22 was lawful and reasonable, and if the Appellant's suspension without remuneration was a fair and reasonable disciplinary measure. The Respondent argued that the Direction had been found lawful and reasonable in previous cases and that the Appellant's failure to comply with it constituted serious insubordination. The Appellant had to prove that the decision was not fair or reasonable, a burden he failed to discharge. The Commission also considered the Appellant's claims that the Direction was not reasonable given the risk posed by COVID-19, and that it contravened existing legislative protections. These arguments had been previously rejected by the Commission.
The Commission found that the Direction was lawful and reasonable, as confirmed by numerous previous decisions. The Appellant's failure to comply with a lawful and reasonable direction justified disciplinary action, and the Commission concluded that the Appellant's suspension was a fair and reasonable response. The Commission noted that the Appellant had not presented any new arguments or compelling mitigating factors to alter this conclusion. Therefore, the Commission exercised its discretion under Section 562A(3) of the Industrial Relations Act 2016 to decline to hear the appeal. The appeal was deemed misconceived or lacking in substance, and it was not in the public interest for the matter to proceed to a hearing.
Pursuant to Section 562A(3) of the Industrial Relations Act 2016, the Commission declined 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
Ratio Decidendi
Legal Principle Established
The Reimbursement Decision issued to the Appellant was procedurally fair. Similar to the decision in Nuske,[18] 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.[19][18] [2023] QIRC 199.[19] Respondent's submissions filed 30 October 2023, [24].Consideration 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.[20][20] 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. The Appellant bears the onus of establishing that the decision was not fair or reasonable. He has failed to do so. In the cases determined in this Commission many of which have been referred to above, I consider the decision to not reimburse the Appellant for the period of his suspension was fair and reasonable. As I observed in Rossiter v State of Queensland (Department of Education):[21][33] Having regard to the lawful and reasonable nature of the Direction it ought not have been a surprise to the Appellant that she was the subject of disciplinary action. It is well accepted that a failure to obey a lawful and reasonable direction of your employer is a serious matter.[22] The decision, the subject of this appeal was, in my view, fair and reasonable.[21] [2024] QIRC 025.[22] Grant v BHP Coal Pty Ltd (No 2) [2015] FCA 1374. The assertions made by the Appellant in his notice of appeal include that the Direction was not lawful or reasonable; that the Direction was not reasonable having regard to the risk posed by COVID-19; a challenge to the efficacy and effectiveness of the vaccines; and the Direction otherwise contravened existing legislative protections. These submissions are not new. They have been the subject of various proceedings before this Commission and all such arguments have been rejected. The submissions of the Appellant have no merit. On any view of the material before the Commission the appeal advanced by the Appellant is misconceived or lacking in substance and it would not be in the public interest for this matter to progress to a hearing. Appropriate grounds have been formed to exercise the discretion to decline to hear the appeal. I make the following order:Order:1. Pursuant to s 562A(3) of the Industrial Relations Act 2106, I decline to hear the appeal.