QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:
	Perichon v State of Queensland (Department of Education) [2022] QIRC 495

PARTIES:	
	Perichon, Emma
(Appellant)

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

CASE NO:
	PSA/2022/764	
PROCEEDING:
	Public Service Appeal - Appeal against a suspension without pay decision

DELIVERED ON:

HEARING DATE:
	22 December 2022

1 December 2022
	
MEMBER:

HEARD AT:	O'Connor, VP

Brisbane

ORDER:
	1.	The extension of time to file the public service appeal is refused.

2.	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 - appeal against a suspension without pay decision - whether appeal has been filed out of time - 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 - extension of time to file appeal refused - suspension without pay decision was fair and reasonable - declined to hear appeal
	
LEGISLATION:
	Industrial Relations Act 2016 (Qld), s 564
Public Service Act 2008 (Qld), s 137

Department of Education Employment Direction 1/21 - COVID-19 Vaccinations
Department of Education Employment Direction 1/22 - COVID-19 Vaccinations
Public Service Commission Suspension Directive 16/20, cl 6
	
CASES:	A1 Rubber (Aust)Pty Ltd v Chapman (Office of Industrial Relations) [2019] ICQ 16
Allison v State of Queensland (Department of Education) [2022] QIRC 152
Brailey v State of Queensland (Department of Education) [2022] QIRC 401
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
Erhardt v Goodman Fielder Food Services Limited (1999) 163 QGIG 20
Gorry v State of Queensland (Department of Education) [2022] QIRC 196
Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176; (1984) 3 FCR 344
Kazuva v State of Queensland (Queensland Health) [2022] QIRC 147
Luna v State of Queensland (Department of Education) [2022] QIRC 419
Maina v State of Queensland (Queensland Health) [2022] QIRC 100
Nicholas v State of Queensland (Department of Education) [2022] QIRC 157
Prentis v State of Queensland (Department of Education) [2022] QIRC 212
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
Tribe v State of Queensland (Department of Education) [2022] QIRC 203
Winter v State of Queensland (Department of Education) [2022] QIRC 350

Reasons for Decision 

Introduction 

[1]	Ms Emma Perichon ('the Appellant') is employed by the State of Queensland ('Department of Education') ('the Department') as a permanent Experienced Senior Teacher at Theodore State School.

[2]	The Appellant is appealing a decision to not reimburse her remuneration for a period that she was suspended without pay ('Reimbursement Decision') as the discipline decision did not result in termination of her employment.  The reasons set out in the Appellant's Appeal Notice are as follows:
	
	I am lodging the appeal because under section 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".

	A decision on disciplinary action has been made.  I am not being terminated.  No reimbursement for the forced unpaid suspension is being provided to me.

[3]	The Respondent communicated the Reimbursement Decision to the Appellant on 24 June 2022.

[4]	The Appellant was suspended without pay from 17 February 2022 to 30 June 2022 because she did not provide evidence of having received a COID-19 vaccination and was therefore not available to work in a school.

[5]	On 24 June 2022 the Respondent wrote to the Appellant to confirm when the cancellation of suspension would apply and referred to the Reimbursement Decision specifically in accordance with cl 6.10 of the Public Service Commission's Suspension Directive 16/20 ('the Suspension Directive').  If this is the decision subject to the appeal, the Respondent contends the Appeal has been filed out of time.

The Direction

[6]	This appeal has been commenced in the context of the Appellant allegedly failing to comply with a direction of the Department of Education Employment Direction 1/21 - COVID-19 Vaccinations ('Direction 1/21') issued on 16 December 2021.  On 10 March 2022 the Department of Education Employment Direction 1/22 - COVID-19 Vaccinations ('Direction 1/22') was issued.  Direction 1/21 and Direction 1/22 will collectively be referred to as ('the Direction').

[7]	Section 5 of the Direction required all 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 the Direction prescribes that 'high-risk settings' include schools and outdoor education facilities.  Relevantly, the Appellant's employment as a teacher falls within a 'high-risk setting' and she was therefore required to be vaccinated against COVID-19.

[8]	The Direction was revoked with effect from 30 June 2022 pursuant to s 137(8) of the Public Service Act 2008 ('the PS Act').

[9]	The Respondent referred to several recent Decisions of the Commission which found the Direction was both lawful and reasonable.

[10]	In similar circumstances, the Commission has found that the Respondent appropriately applied the Suspension Directive by not reimbursing employees for remuneration lost during the period of a suspension without remuneration where the person was unable to attend the workplace to perform work.

	Suspension

[11]	By letter dated 10 January 2022 to the Appellant, the Department alleged the Appellant failed to comply with the Direction and determined to suspend her from duties on normal remuneration.  The Department also advised the Appellant that they were considering suspending her without remuneration and provided the Appellant with seven (7) days to respond as to why she should not be suspended without remuneration.

[12]	On 15 January 2022, the Appellant responded to the show cause notice.  In her response, she outlined her apprehensions regarding her hesitancy to receive the vaccine because of her medical concerns and the safety of the COVID-19 vaccines.  Further, the Appellant referred to a Notice for the Constitutional Right to Decline Any Irreversible Invasive Medical Procedure.

[13]	By letter dated 17 February 2022, the Department issued a decision that the Appellant be suspended from duty without normal remuneration pursuant to s 137(1)(b) of the PS Act until 30 June 2022, or until otherwise advised.  The Appellant did not appeal the decision to suspend her without pay.

[14]	By letter dated 24 June 2022, the Department advised the Appellant of the Reimbursement Decision, and that the Direction would be revoked and that her suspension from duty would cease on 30 June 2022.  The Appellant was directed to resume duty at her workplace on the first day of Term 3, 2022.

[15]	The Appellant filed her appeal on 9 September 2022.

[16]	On 31 October 2022 a Directions Order was issued for the parties to file written submissions and the matter was listed for hearing on 1 December 2022.  The Appellant filed her submissions on 1 November 2022 and the Respondent provided submissions on 14 November 2022.

[17]	At the hearing on 1 December 2022 the Appellant confirmed that she was seeking to appeal the Respondent's decision dated 24 June 2022.

[18]	In response to the Respondent's submission that the appeal of the Reimbursement Decision is out of time, the Appellant said she had to wait for the outcome of the disciplinary finding.  There were exceptions and as a teacher due to transfer to a remote location her conduct was not serious enough for her to be dismissed.  It was her view she should be reimbursed as the outcome did not result in termination and no disciplinary action was taken.  She is entitled to be paid for the time during which she was suspended from 17 February 2022 until 30 June 2022.

Jurisdictional objection

[19]	The Respondent submits the appeal was filed significantly out of time and should not be heard.  Section 564 of the Industrial Relations Act 2016 ('the IR Act') provides a right to appeal under Ch 7 of the PS Act lapses 21 days after the decision was given.  As the appeal was not filed until 9 September 2022 it was well outside the 21-day limitation period.

[20]	The importance of statutory time limits has been consistently recognised and should not easily be dispensed with.

[21]	The Respondent submits the Appellant has not provided any compelling reasons for the delay as required to extend the 21-day time period in which to file her appeal.

[22]	The Appellant was notified on 24 June 2022 of the Reimbursement Decision and at that point in time the Appellant could have filed an appeal against that decision.

[23]	The Respondent submits that the Commission should decline to hear the Appeal on the basis it is out of time and has limited prospects of success.

Consideration

[24]	Before considering the appeal against the Reimbursement Decision, it is necessary to decide whether the appeal has been filed out of time.  The Appellant was advised of the Reimbursement Decision on 24 June 2022.  Her appeal was filed on 9 September 2022, some 76 days later.

[25]	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. 

[26]	Martin J considered the operation of s 564(2) of the IR Act in A1 Rubber (Aust)Pty Ltd v Chapman (Office of Industrial Relations).  His Honour wrote: 

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) 

[27]	The burden of establishing that the justice of the case is one in which the Commission's discretion should be exercised rests with the Appellant. 

[28]	In response to the matter being out of time at the hearing on 1 December 2022, the Appellant stated:

APPELLANT:  So, my appeal was submitted within reasonable time --- 

HIS HONOUR:  No, no.  It doesn't have to be a reasonable time.  It needs to be within 21 days of the date of the decision.

APPELLANT:  Okay.  Well, my appeal was submitted within 21 days of me receiving my disciplinary action.  So I couldn't put my appeal in until I'd received the outcome of my disciplinary action, so ---

HIS HONOUR:  Sorry.  I might have misunderstood what the appeal is.  I thought your appeal was about your remuneration.  That you're suspended, and now you want to have your remuneration repaid.  Is that right? 

APPELLANT:  That is correct. 
HIS HONOUR: Okay.

[29]	The Appellant went on to say the appeal is not against the disciplinary outcome but the fact that she now seeks reimbursement.

[30]	With respect to cls 6.6 and 6.10, the Appellant reiterated the reasons for her appeal:

Yes.  The suspension directive clearly states that an employee must be reimbursed for remuneration the employee does not receive during the employee's suspension if a decision on the discipline has been made that does not result in termination of their employment.  So, I had to wait for the disciplinary action.  My employment was not terminated, so I am appealing against the fact that they are refusing to reimburse the pay that was lost in that time.

[31]	Clause 6.6 of Directive 16/20 provides that:
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.

[32]	Clause 6.10 of Directive 16/20 provides that:

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. 

[33]	The Appellant was not available to work during the period of her suspension as she had not complied with the then necessary requirements to work.  She was suspended without pay due to her failure to comply with the Direction.  The Appellant's submissions do not contest the lawfulness of the Direction, or the directions issued by the Chief Health Officer.  Rather, the Appellant contends that she was available to work during the period of her suspension.  However, the fact is that the Appellant was not able to establish that she had complied with the necessary requirements, as set out in the Direction, to work.  Indeed, those matters are the very reason why she had been suspended in the first place.

[34]	Despite the Appellant claiming she had to wait for the disciplinary outcome, clearly the appeal of the Reimbursement Decision has been filed significantly out of time.  Further, 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 her suspension was fair and reasonable. 

[35]	The length of delay and inadequacy of the explanation provided together with the fact that the appeal has extremely limited prospects of success lead me to the conclusion that the discretion to grant an extension of time ought not to be granted.

[36]	Even if I were to exercise my discretion to grant an extension of time under s 564(2) of the IR Act, I would have, on the basis of the extremely poor prospects of success, exercised my discretion under s 562A(3) of the IR Act not to hear the appeal.

[37]	I make the following order:

Order:

1.	The extension of time to file the public service appeal is refused.

2.	Pursuant to s 562A(3) of the Industrial Relations Act 2106, I decline to hear the appeal