QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:
	Jones v State of Queensland (Department of Education) [2022] QIRC 470

PARTIES:	
	Jones, Robyn Linda 
(Appellant)

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

CASE NO:
	PSA/2022/683	
PROCEEDING:
	Public Service Appeal - Appeal against a suspension without pay decision 

DELIVERED ON:
	2 December 2022 	
MEMBER:

HEARD AT:	Hartigan IC

On the papers

ORDER:
	Pursuant to s 562A 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 suspension without pay decision - where the appellant was suspended without pay for not complying with Direction 1/21 - COVID-19 Vaccinations - where appellant submits that decision is unfair and unreasonable - where appeal lodged out of time - whether extension of time should be granted - extension of time refused - decline to hear the appeal.
	
LEGISLATION:

CASES:	Industrial Relations Act 2016 (Qld), s 197, s 562, s 562A 
Public Service Act 2008 (Qld), s 137, s 194

Department of Education Employment Direction 1/21 
Public Service Commission Suspension Directive 16/20, cl 6

Brandy v Human Rights and equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245

Goodall v State of Queensland (Unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018)

A1 Rubber (Aust)Pty Ltd v Chapman (Office of Industrial Relations) [2019] ICQ 16

Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176; (1984) 3 FCR 344

Reasons for Decision 

Introduction 

[1]	Ms Robyn Linda Jones is employed by the State of Queensland (Department of Education) ('the Department'). Ms Jones is permanently employed as a Teacher Aide at Forest Beach State School. 

[2]	This appeal has been commenced in the context of Ms Jones allegedly failing to comply with a directive which required Ms Jones to comply with the requirements of the Department of Education Employment Direction 1/21 - COVID-19 Vaccinations ('Direction 1/21'). 

[3]	Direction 1/21 requires that all existing and prospective Department of Education workers who attend a high-risk setting be vaccinated against COVID-19 unless the worker has a valid exemption. Section 3 of Direction 1/21 prescribes that 'high-risk settings' include schools and outdoor education facilities. Relevantly, Ms Jones' employment as a Teacher Aide falls within a 'high-risk setting' and she is therefore required to be vaccinated against COVID-19. 

[4]	Between 24 January 2022 and 19 April 2022, Ms Jones took a period of long service leave. 

[5]	By letter dated 24 March 2022, the Department advised Ms Jones that they did not currently have details confirming that she had received the prescribed number of doses of a COVID-19 vaccine as required by Direction 1/21 and requested that the relevant evidence be provided to the Staff Vaccination Status mailbox. 

[6]	Ms Jones did not provide the Department with evidence of having received the prescribed doses of a COVID-19 vaccine.  

[7]	By letter dated 19 April 2022, the Department put an allegation associated with Ms Jones' failure to comply with Direction 1/21 and determined to suspend Ms Jones from duties on normal remuneration.  The Department also advised Ms Jones that they were considering suspending her without pay and provided Ms Jones with seven (7) days to respond as to why she should not be suspended without pay.

[8]	On 19 April 2022, Ms Jones responded to the show cause notice. In her response she outlined her concerns about the safety of the COVID-19 vaccines and her hesitancy to receive the required vaccinations. 

[9]	By letter dated 29 April 2022, the Department issued a decision that Ms Jones be suspended from duty without normal remuneration pursuant to s 137(1)(b) of the Public Service Act 2008 (Qld) ('PS Act').

[10]	By letter dated 24 June 2022, the Department advised Ms Jones that Direction 1/21 had been revoked and that her suspension from duty would cease on 30 June 2022. 

[11]	By notice of appeal filed on 19 July 2022, Ms Jones appeals the decision suspending her without normal remuneration dated 29 April 2022 ('Suspension Without Remuneration Decision') and attaches the decision dated 29 June 2022 which advised the Appellant of the cancellation of her suspension ('Cancellation of Suspension Decision'). Ms Jones relies on the following matters in support of her appeal:

I am appealing the decision made to suspend my employment without pay. I did follow all the guidelines sent to me by the COVID Conveyancing team regarding my reason for not being vaccinated and did comply with all the regularisations which were put in place during that time. It was great financial hardship being without pay during this difficult time and had a significant impact on my family life in general. I did seek medical assistance to back my decision, but to no avail. My mental health during this time suffered greatly, as did my small nest egg of savings, which was necessary to use to meet the daily needs of living and bills. 

The decision to be suspended without pay has had a detrimental effect on me both mentally and financially. 

[12]	On 19 July 2022, the Commission issued directions to the parties in relation to the provision of written submissions in support of their position with respect to the appeal. Ms Jones did not file any written submissions.

[13]	By email correspondence dated 7 September 2022, the Industrial Registry requested Ms  Jones to advise the Commission as to whether she wished to file any written submissions in support of her appeal. No reply was received from Ms Jones. 

[14]	The appeal is made pursuant to s 197 of the PS Act, which provides that an appeal under Ch. 7, Pt. 1 of the PS Act is to be heard and determined under Ch. 11 of the Industrial Relations Act 2016 (Qld) ("the IR Act") by the Queensland Industrial Relations Commission. 

[15]	Sections 562B(2) and (3) of the IR Act, which commenced operation on 14 September 2020, replicate the now repealed ss 201(1) and (2) of the PS Act. Section 562B(3) of the IR Act provides that the purpose of an appeal is to decide whether the decision appealed against was fair or reasonable. Accordingly, the issue for my determination in this appeal is whether the decision is fair and reasonable. 

[16]	As an IRC Member, I must decide the appeal by reviewing the decision appealed against. The word "review" has no settled meaning and, accordingly, it must take its meaning from the context in which it appears. An appeal under Ch. 7, Pt. 1 of the PS Act is not by way of re-hearing but, rather, involves a review of the decision arrived at and the decision-making process associated with it. 

[17]	However, before I consider the substance of the appeal, I must be satisfied that the appeal is one which is able to be heard.

Jurisdictional objection 

[18]	The Department raises two jurisdictional objections to the appeal as follows:

Want of jurisdiction 

13.	The Respondent submits that the Suspension Cancellation Decision is not appealable under s 194(1)(bb) of the PS Act as a 'suspension without pay decision'.  Section 194(1)(bb) provides that:

"Decision against which appeals may be made

a decision to suspend a public service employee without entitlement to normal remuneration under section 137 (a suspension without pay decision)."

14.	The Respondent submits that the decision to suspend the Appellant without normal remuneration occurred in the Suspension Without Remuneration Decision and not in the later Suspension Cancellation Decision. The Respondent further submits that the Suspension Cancellation Decision is a decision of an administrative nature that is not appealable under s 194(1)bb) of the PS Act.

15.	As the Appellant has failed to articulate any alternative ground of appeal in relation to the Suspension Cancellation Decision these submissions will hereafter be confined to consideration of the Suspension Without Remuneration Decision.

The Appeal is out of time 

16.	The Respondent submits that an appeal of the Suspension Without Remuneration Decision is out of time and should not be heard for that reason. 
…
18.	The Suspension Without Remuneration Decision was provided to the Appellant on 29 April 2022. Accordingly, the Appellant's right to appeal lapsed on 20 May 2022. As the Appeal was filed on 19 July 2022, it is some 60 days beyond the statutory limit. 

[16]	Section 194(1)(bb) of the PS Act relevantly identifies the decisions against which appeals may be made as follows:

194 	Decisions against which appeals may be made 

(1)	 An appeal may be made against the following decisions - 

(bb)	a decision to suspend a public service employee without entitlement to normal remuneration under s 137 (a suspension without pay decision).

[17]	In its submissions, the Department raises issues regarding whether the decision subject of the appeal is the Suspension Without Remuneration Decision or the Cancellation of Suspension Decision. This is because the Appeal Notice was brought pursuant to s  194(1)(bb) of the PS Act (Suspension Without Remuneration Decision) however Ms Jones attached the Cancellation of Suspension Decision as supporting documentation. 

[18]	I consider that the subject matter of this appeal relates to the Suspension Without Remuneration Decision. I have formed this view on the basis that Ms Jones directly states in her grounds of appeal "I am appealing the decision made to suspend my employment without pay."

[19]	Given that I accept that Ms Jones seeks to appeal the suspension without remuneration decision I must consider the Department's objection with respect to whether the appeal was filed out of time. The decision subject to the appeal was issued on 29 April 2022. The appeal notice was filed on 19 July 2022, being some 60 days out of time.

[20]	Section 564(2) of the IR Act bestows a discretion on the Commission to allow an appeal to be started within a longer period. In this regard, s 564(2) of the IR Act provides as follows:

564	Time limit for appeal 

(2)	However, on an application made during or after the appeal period, the industrial tribunal may allow an appeal to be started within a longer period.

[21]	Section 564(2) of the IR Act was considered by President Martin J in A1 Rubber (Aust)Pty Ltd v Chapman (Office of Industrial Relations) as follows: 

On an application to extend time, the approach of this Court was described by President Hall in the Neophytos Foundadjis v Collin Bailey in the following way:

"This Court has traditionally adhered to the view that s. 346 of the Industrial Relations Act 1999 represents a legislative assessment that in the ordinary category of cases, justice will best be served by adhering to a 21 day limitation period, though on occasion the limitation may defeat a perfectly good case and that the discretion to extend time should be exercised only where the applicant for an extension of time discharges a positive burden of demonstrating that the justice of the case requires the indulgence of a further period." (citations omitted)
…

[22]	Accordingly, an Appellant bears the burden of establishing that the justice of the case is one in which the Commission's discretion should be exercised.

[23]	Despite being given an opportunity to make submissions and submissions in reply to the respondent's submission, Mr Jones has not engaged in the appeal process beyond filing the notice of appeal.

[24]	Relevantly, on 7 September 2022, the Industrial Registry, after referring to the Directions Order issued on 19 July 2022, wrote to the parties in the following terms:

The Industrial Registry is not in receipt of any submissions filed by the Appellant. Unless the parties contact the Industrial Registry and advise that they would like to seek leave to make further written submissions by 12 noon on Friday 9 September 2022, the matter will be dealt with on the papers pursuant to s 451(1) of the Industrial Relations Act 2016(Qld).

[25]	Relevantly the parties did not seek leave to make further written submissions.

[26]	In Hunter Valley Developments Pty Ltd v Cohen, Wilcox J set out a number of principles that can act as a useful guide in determining whether to exercise a discretion to extend a time frame to allow a person to lodge an application or an appeal.  I will consider those principles, to the extent they are relevant, in the context of this matter further below.

Length of delay and explanation provided

[27]	Ms Jones has provided no explanation as to the reason for the delay. 

[28]	The length of the delay is sixty (60) days. That is not insignificant in circumstances where Parliament imposed an appeal period of twenty-one (21) days.

[29]	A reasonable explanation for the length of the delay has not been provided by Ms Jones. The length of the delay (60 days) and the failure to provide a reasonable explanation for the delay are matters which weigh against the Commission exercising its discretion to extend the time to file the appeal. 

Prejudice to the Respondent

[30]	I accept the Respondent's submission that a delay in and of itself is considered to give rise to a general presumption of prejudice to a respondent.  However, I consider, given the facts of this matter, which including the matter largely progressed on the papers,  that prejudice to the Respondent is a neutral consideration.

Merits of the Appeal 

[31]	The role of the Commission in an appeal of this nature is to determine whether the decision the subject of the appeal is fair and reasonable. Such an inquiry ordinarily requires consideration of the relevant matters that were before the decision maker at the time the decision was made. Matters that have occurred subsequent to the decision ordinarily do not assist in determining whether the decision, at the time it was made, was fair and reasonable.

[32]	On the face of the material filed in this appeal, it appears that there was a factual basis for the decision to suspend Ms Jones without remuneration.  Namely that Ms Jones was liable to discipline for failure to follow a lawful and reasonable direction to comply with Direction 1/21. 

[33]	Whilst I accept that the decision had an impact on Ms Jones, including financially, there is no material put before me of a compelling and particularised nature which could support an argument that the decision was not fair or reasonable.  

[34]	Accordingly, on the material before me I consider that the appeal has limited prospects of success. I consider this matter weighs against the exercise of the discretion to grant an extension of time.

[35]	Having considered the matters referred to above, I have determined not to exercise my discretion to extend the period of time to file the appeal and will decline to hear the appeal. 

[36]	I make the following order:

Order 

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