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Unvaccinated worker not entitled to reimbursement for suspension without pay

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The Queensland Industrial Relations Commission recently ruled in favour of the State of Queensland, confirming an employee who was suspended without pay while they were unvaccinated, was not entitled to be reimbursed their pay when the suspension came to an end and they returned to work.

Factual background

The employee is employed by the Department of Education as an AO2 Administration Officer at a school.

The employee was suspended from duty because she did not receive the required doses of a COVID-19 vaccine. She was initially suspended with pay, but was later suspended without pay.

The employee was required to be vaccinated in accordance with a direction issued by the Director-General (Department of Education - Employment Direction 1/21 - COVID-19 Vaccinations). The Department’s direction was based on the Chief Health Officer’s COVID-19 Vaccination Requirements for Workers in a high-risk setting Direction, which required staff in schools to be vaccinated.

The CHO Directive was revoked on 30 June 2022. Staff who had been suspended due to their failure to be vaccinated returned to work from 11 July 2022, the first day of Term 3.

The employee was suspended without pay from 15 February 2022 until 30 June 2022. She appealed the decision not reimburse her remuneration for the period she was suspended without pay on the basis it was outside the scope of the Directive 16/20 – Suspension.

The Suspension Directive provides:

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.

Decision

The Department argued the employee was not entitled to be reimbursed for the period she was suspended without pay because she was unavailable to work during the period of suspension as a result of her failure to be vaccinated. Her status as someone who was unvaccinated meant she could not enter her workplace and was therefore not available to work.

DP Merrell found the Department’s submissions ‘meritorious’. He considered the decision to be fair and reasonable noting:

  1. clause 6.6 of the Suspension Directive was to be read subject to clause 6.10;
  2. while the employee remained unvaccinated, she could not, as a worker, enter the school at which she was employed because of the independent application of the CHO Direction.
  3. even though the employee stated she made herself available for work at the school during the period of her suspension without remuneration, the undeniable fact was she was not available for work at the school during the period of her suspension for a reason other than her being suspended, namely the application of the CHO Direction.
  4. if the employee became vaccinated during the period of her suspension without remuneration, and that suspension remained on foot, then clause 6.10 of the Suspension Directive would not apply to her from the point in time of her being fully vaccinated, assuming there was no other reason for her unavailability to work. In other words, if the employee became vaccinated during the period of suspension and remained suspended, she would be entitled to be reimbursed from the date she became vaccinated.

Authors: Nicola Smith and Hannah Kidd