QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Meni v State of Queensland (Department of Education) [2023] QIRC 018
	
PARTIES:	
	Meni, Tina Catherine
(Appellant)

v

State of Queensland (Department of Education)
(Respondent)
	
CASE NO:
	PSA/2022/740	
PROCEEDING:
	Public Service Appeal – appeal against disciplinary decision
	
DELIVERED ON:
	20 January 2023	
MEMBER:
	Dwyer IC	
HEARD AT:	On the papers
	
ORDER:
	1.	Pursuant to s 562A(3) of the Industrial Relations Act 2016 (Qld), I decline to hear the Appellant's appeal against the decision.
	
CATCHWORDS:

LEGISLATION:	INDUSTRIAL LAW - PUBLIC SERVICE – appeal – appeal against disciplinary decision - where appellant employed by the State of Queensland as an Experienced Senior Teacher – where Employment Direction 1/22 – COVID-19 Vaccinations ('the direction') required the appellant to receive the first vaccination dose by 17 December 2021 and the second dose by 23 January 2022 – where appellant failed to comply with the direction  –  appellant suspended from duty without renumeration – appellant subsequently vaccinated - suspension cancelled – decision that appellant would not be repaid renumeration for the period of suspension whilst unvaccinated – appellant reimbursed for dates after she was vaccinated -  appellant sought internal review of decision – material indicates submissions similar to those which have been unsuccessfully raised by other appellants before the commission – consideration of whether the hear the appeal – appeal has no prospects of success – appeal dismissed 

COVID-19 Vaccination Requirements for Workers in a high-risk setting Direction

COVID-19 Vaccination Requirements for Workers in a high-risk setting Direction (No. 2)

Department of Education - Employment Direction 1/21 - COVID-19 Vaccinations

Direction 16/20, Suspension Direction cl 6

Industrial Relations Act 2016 (Qld) s 562A

Public Service Act 2008 (Qld) s 137
	
CASES:	Carr v State of Queensland (Department of Education) [2022] QIRC 463

Luna v State of Queensland (Department of Education) [2022] QIRC 419

Winter v State of Queensland (Department of Education) [2022] QIRC 350

Reasons for Decision

	Background
	
[1]	Ms Tina Meni ('Ms Meni') is permanently employed by the Department of Education ('the department') as an Experienced Senior Teacher at Merrimac State High School. 

[2]	On 11 December 2021, the Chief Health Officer issued the COVID-19 Vaccination Requirements for Workers in a high-risk setting Direction ('the CHO direction'). The department subsequently issued the Employment Direction 1/22 – COVID 19 Vaccination ('the direction'). Ms Meni was subject to the direction and did not comply with that direction and was subsequently suspended from her duties without pay.

[3]	By letter dated 10 January 2022, Executive Director Ms Genevieve Gillies-Day wrote to Ms Meni and advised her she was not lawfully able to attend the workplace due to failing to provide evidence that she had been vaccinated against COVID-19. She was subsequently suspended on normal renumeration and invited to show cause as to why she should not be suspended without renumeration. After considering Ms Meni's response, she was suspended without renumeration from 10 February 2022, effective until 30 June 2022 or until otherwise advised. 

[4]	On 15 March 2022, Ms Meni provided evidence that she had received her second dose of the COVID-19 vaccination on 14 March 2022. Subsequently, by letter dated 17 March 2022, Mr David Miller, Executive Director, Early Learning and Development advised Ms Meni that he had decided to cancel her suspension, effective immediately.

[5]	On 23 March 2022, Ms Meni emailed Ms Gillies-Day to request reimbursement of renumeration for the duration of her suspension from 10 February 2022 to 17 March 2022 inclusive. She stated her request was made in accordance with Suspension Directive 16/20 ('the directive'). The department advised Ms Meni that she was eligible for backpay from the date she provided evidence that she received her second dose of the vaccine (15 March 2022) ('the first decision').  

[6]	Ms Meni lodged an internal employee grievance on 27 April 2022. 

[7]	On 6 July 2022 a decision was provided confirming the first decision was fair and reasonable. Ms Meni lodged a stage 2 – Internal review on 18 July 2022. On 18 August 2022 a decision was provided to Ms Meni, advising that the internal review decision was fair and reasonable. This is the decision that Ms Meni now appeals.

The 7 November Mention 

[8]	I listed the matter for mention on 7 November 2022. At that mention, I advised the parties that having reviewed the material, I had formed a preliminary view that there were several similarities to a number of decisions already released by the Commission.

[9]	I subsequently put the parties on notice that I was giving consideration to not dealing with this public service appeal, pursuant to s 562A of the Industrial Relations Act 2016 (Qld) ('the IR Act'). I noted that Ms Meni would have an opportunity to provide a submission as to why she believes she has an arguable case.

[10]	Directions were issued to that effect on 7 November 2022.

Relevant legislation 

[11]	Section 562A of the IR Act relevantly provides: 

(1)	…

(2)	…

(3)	The commission may decide it will not hear a public service appeal against a decision if—

(a)	the appellant has made an application to a court or tribunal relating to the decision, whether or not the application has been fully decided; or

(b)	the commission reasonably believes, after asking the appellant to establish by oral or written submissions that the appellant has an arguable case for the appeal, that the appeal—

(i)	is frivolous or vexatious; or
(ii)	is misconceived or lacks substance; or
(iii)	should not be heard for another compelling reason.

(Emphasis added)

Submissions of Ms Meni 

[12]	Ms Meni submits that she has an arguable case, 'despite the previous decisions of Deputy President Merrell and Commissioner Dwyer in matters Winter v State of Queensland… and Luna v State of Queensland…'. She contends the appellants in those cases had different circumstances, and their positions differ from hers.

[13]	Ms Meni submits she has consistently argued that there were reasonable alternatives and duties available which would have enabled her to continue to work off site, meaning she could adhere to the CHO direction. She submits Ms Winter and Ms Luna's positions were different. She also contends that they did not challenge that reasonable alternatives were available to them.

[14]	Ms Meni submits her range of experience in the department means she would be able to complete a more diverse set of tasks under temporary adjustment, alternate duties, or roles. She says she spends up to 25 hours per week planning lessons and monitoring student progress using online learning platforms when she is not teaching face to face with students. She notes all communication between colleagues, students and parents are via email or school intranets. She submits she could complete these duties remotely and still adhere to the CHO direction. Ms Meni notes she worked from home as a teacher in March 2020 and kept a daily log of tasks she was doing. 

[15]	Ms Meni submits that when schools were a high-risk setting, the department had a duty of care to support her as a vulnerable employee with a compromised immune system. She states they declined to support her, despite her request to the principal via email and her ongoing correspondence with the department while she was suspended. 

[16]	Ms Meni contends the department did not adhere to section 137(3) of the PS Act because they did not consider all reasonable alternatives. Specifically, she contends the department said it was not their role to take a state-wide search of the public service to find a role she could undertake. 

[17]	Ms Meni submits the department's inconsistency in letting her work remotely under a temporary adjustment in 2020 but not in 2022 renders the decision unfair. She contends there was an increased necessity and demand for her to work remotely in 2022 due to an increased risk of her health and safety as an immunocompromised person working in a high risk setting, and because student absences increased due to COVID-19 safety directions, which meant she could have taught remotely and provided wellbeing to the three to five percent of students at her school who were unable to access their face to face education. 

[18]	Ms Meni notes her suspension was cancelled following her compliance with the departmental direction, which she distinguishes from Ms Winter and Ms Luna's circumstances. She contends at all stages in her correspondence with the department, she advised of her intentions to be vaccinated. She also submits she was transparent in her reasoning for why she was delaying her vaccination, which was due to the delay in the government rollout of Novavax, which she says she expected would be made available in 2021. 

[19]	Ms Meni submits she was waiting for Novavax due to the information available to her at that time which was that the trial data showed 100 per cent effectiveness against severe disease and death including for immunocompromised populations.

[20]	Ms Meni closes her submissions by contending that the department's position that she was not available to work is inconsistent and unfair, as teachers who were on medical exemption were not deprived of pay or entitlement for the duration that schools were deemed as a high risk setting and were able to perform alternate roles and duties. She says unlike Ms Winter and Ms Luna, she was available to work with alternative arrangements as she had done so in 2020, as an immunocompromised person. She submits she should thus be reimbursed for the period she was suspended without pay. 

Submissions of the department 

[21]	The department's submissions filed on 24 November 2022 rely on their previous submission of 31 October 2022. They submit there is nothing novel in Ms Meni's appeal that has not been already addressed numerous times by decisions of the Commission. 

[22]	In summary, the department submits that at all relevant times the direction applied to Ms Meni, and as a result of her not being vaccinated, she was liable to discipline on the basis she failed to comply with a lawful and reasonable direction. 

[23]	The department notes that Ms Meni appears to be relying on clause 6 of the directive, without appreciating the proviso at clause 6.10. 

[24]	Relevantly, these clauses provide: 

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.

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.

(Emphasis added)

[25]	The department notes in accordance with clause 6.10, they have reimbursed Ms Meni for all times she was not paid following the date of her vaccination which also represents the date she became compliant with the CHO directive and the directive and was thus available to work. 

[26]	The department submits the consequence of the direction was that Ms Meni was not able to lawfully attend her workplace, a high risk setting without complying with the requirements of the direction. Thus, despite any willingness to work, the department submits Ms Meni was not available to perform her duties for the duration of her suspension. 

[27]	The department relies upon the decision of Deputy President Merrell in Winter v State of Queensland (Department of Education) ('Winter').

Consideration 

[28]	Notwithstanding that her appeal is limited to the decision not to reimburse her for an unpaid period of suspension, Ms Meni's submissions have a tendency to stray into matters that challenge the suspension. For example, the submissions that the department failed to find alternative duties (as she says they were required to do pursuant to s 137 of the PS Act) which is relevant to suspensions or to allow her to work remotely are not truly matters within the scope of consideration about the fairness or reasonableness of the department's decision pursuant to clause 6.10 of the directive. 
  
[29]	Ms Meni's relevant submissions primarily argue that she was available for work. She contends this by reference to numerous work alternatives that she says could or should have been considered that she was available. Despite the assertion that she is somehow distinguishable from the appellants in the matter of Winter or Luna v State of Queensland (Department of Education) ('Luna'), Ms Meni is not. 

[30]	When one has regard to the relevant considerations of the application of clause 6.10 of the directive, it is clear that from Ms Meni's submissions as to her availability and willingness to work have previously been unsuccessfully argued by appellants before the Commission. 

[31]	The comments of Deputy President Merrell in Winter are apposite:

[21]	…. On the facts before the Department, as presented to me by both parties, the only reason that Ms Winter was unable to attend work as from 15 February 2022, for a reason other than her suspension, was due to the operation of the Second CHO Direction which, in turn, applied to Ms Winter because of her unvaccinated state. In her appeal notice, Ms Winter states that she has medical reasons for not being vaccinated, but has led no evidence that she has appealed a decision not to grant her an exemption.

[22]	Thirdly, the Departmental Direction cites the First CHO Direction as being the legal instrument prohibiting unvaccinated workers attending Departmental high risk settings. The Departmental Direction does not purport to be the source of power prohibiting unvaccinated workers attending Departmental high risk settings.

[23]	On the other hand, the Departmental Direction was a direction, separate to the First and Second CHO Directions, given to certain public service employees employed in the Department by the Chief Executive of the Department. The Departmental Direction was a lawful direction that public service employees employed in the Department, who fell within the scope of the First CHO Direction, had to be vaccinated as provided for in the Departmental Direction. Pursuant to s 187(1)(d) of the PS Act, a public service employee may be liable for discipline if the employee contravenes, without reasonable excuse, such a direction. Pursuant to s 137 of the PS Act, if the Chief Executive of the Department reasonably believes a public service employee is liable to discipline under a disciplinary law, then the employee may be suspended from duty, either with or without remuneration.

[24]	The First and Second CHO Directions were lawfully given by the Chief Health Officer pursuant to s 362B of the Public Health Act 2005. That section is contained in ch 8 ('Public Health Emergencies'), pt 7A ('Particular powers for COVID-19 emergency') of that Act. Section 362B provides:

362B 	Power to give directions

(1) 	This section applies if the chief health officer reasonably believes it is necessary to give a direction under this section (a public health direction) to assist in containing, or to respond to, the spread of COVID-19 within the community.

(2) 	The chief health officer may, by notice published on the department's website or in the gazette, give any of the following public health directions-
(a)	a direction restricting the movement of persons;
(b)	a direction requiring persons to stay at or in a stated place;
(c) 	a direction requiring persons not to enter or stay at or in a stated place;
(d) 	a direction restricting contact between persons;
(e) 	any other direction the chief health officer considers necessary to protect public health.

(3) 	A public health direction must state-
(a) 	the period for which the direction applies; and
(b) 	that a person to whom the direction applies commits an offence if the person fails, without reasonable excuse, to comply with the direction.

[25] 	Ms Winter was suspended without remuneration by virtue of a decision of the delegate of the Chief Executive of the Department which was made pursuant to s 137(4) of the PS Act. That decision was made, in part, due to the nature of the discipline to which the delegate reasonably believed Ms Winter was liable under a disciplinary law. That arose because Ms Winter failed to comply with the Departmental Direction to be vaccinated. However, the only reason Ms Winter was not available to work at the school during the period of her suspension, other than the fact of her suspension, was the application of the Second CHO Direction. The Second CHO Direction applied to Ms Winter due to her unvaccinated state and because of the nature of her workplace. 

[26]	If, at a point in time, Ms Winter became vaccinated during the period of her suspension (and the suspension remained on foot) such that she was compliant with the Second CHO Direction and thereby not prevented from working at the school, then cl 6.10 of the Suspension Directive would not apply to her from that point in time because (in the absence of any other reason) the only reason she would have been unavailable for work was her suspension.

(Emphasis added)

[32]	While I appreciate that it is something of a fine distinction that can be difficult to discern, the departmental directive suspending Ms Meni's employment did not purport to be the source of power prohibiting her from attending work during her period of suspension. The source of the power was the Chief Health Officer's directive, which applied to Ms Meni and prevented her attendance at any departmental site while she was unvaccinated.
 
[33]	The suspension by the department merely gave effect to the Chief Health Officer's directive. 

[34]	Ms Meni's submissions as to her availability to work are not unique. I considered a similar submission in Carr v State of Queensland (Department of Education): 

	Mr Carr's submission in relation to his willingness and ability to work is also redundant. Despite his willingness and perceived availability to work, Mr Carr did not confirm he was vaccinated, nor did he have an exemption for being unvaccinated. In the circumstances, he was not available for work for a reason other than being suspended. I adopt Deputy President Merrell's reasoning as addressed in Winter:

[33] 	Thirdly, even though Ms Winter states that she made herself available for work at the school during the period of her suspension without remuneration, the undeniable fact is that she was not available for work at the school during the period of her suspension for a reason other than her being suspended. That was the result of the application of the Second CHO Direction. Ms Winter, by her own declaration to hold herself out as being available to work at the school during the period of her suspension without remuneration, could not alter the application and effect of the Second CHO Direction.

[35]	Whether she was 'available' for work within the meaning of clause 6.10 of the directive is not determined by the subjective assertions of Ms Meni. In essence, Ms Meni's availability is determined by whether she met (or did not meet) the strict requirements of the Chief Health Officer's directive. It was not the suspension by the department. It was not because the department failed in some way to accommodate Ms Meni in her unvaccinated state. Ms Meni's availability for work was purely and exclusively determined by her compliance with the Chief Health Officer's directive. 

Conclusion

[36]	Having regard to the submissions filed by Ms Meni in this matter, I am satisfied the salient portions are founded on grounds which are the same or essentially the same as grounds relied on unsuccessfully in other appeals previously and that have already been disposed of by this commission. 

[37]	In the circumstances, I consider the lack of novelty in Ms Meni's arguments is a compelling reason to exercise my discretion pursuant to s 562A(3) of the IR Act. In those circumstances, I decline to hear Ms Meni's appeal. 

Order 

[38]	I make the following order:

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