Maryborough teacher Josh Carr suspended without pay over COVID-19 vaccination status

An unvaccinated Queensland high school teacher, who launched a late appeal against his career “destroying” suspension, has learned his fate in the Industrial Relations Commission.

An unvaccinated teacher has been refused the right to challenge a decision to suspend him without pay after the time frame to appeal lapsed.

Joshua Carr was a senior teacher at Maryborough State High School when he refused to be vaccinated against COVID-19.

According to documents from the Queensland Industrial Relations Commission, Mr Carr was required to have his first dose of a Covid vaccine by December 17, 2021, and to provide evidence of the vaccination.

However, he did not and in a letter dated January 10 this year, he was advised he was suspended with pay from January 20, 2022.

Mr Carr was also advised he had the opportunity to respond, no later than January 17, 2022, why he should not be suspended without pay.

An email was sent in response to the letter by Mr Carr.

Another letter sent to Mr Carr, dated January 27, 2022, advised him he would be suspended without pay from that date.

According to the Industrial Relations Act, Mr Carr had to lodge his appeal against being suspended without pay by February 17 this year.

Mr Carr lodged his appeal on March 21, 32 days after that date.

In its response to the appeal being lodged, the Department of Education submitted the 32 days it took Mr Carr to lodge the appeal after the legal time frame had lapsed was a “significant delay”.

In his decision, QIRC member and deputy president John Merrell wrote “I agree”.

Mr Carr submitted that in the letter he had received advising him of his suspension, there was no mention that he had the right or ability to appeal that decision.

He also said he was not informed of the time frame around the process.

“If the Department of Education believes that each employee should already be aware of the process available to appeal decisions in matters like this, then why did they find it necessary to remind me of other expectations and rights like the ability up respond within seven days of the 10th of January email or the Code of Conduct,” Mr Carr wrote in his submission to the QIRC.

“For these reasons, I am seeking from the Queensland Industrial Relations an extension of time to make my appeal beyond the 21 days normally afforded employees.”

In response, the department said Mr Carr had failed to provide any compelling reasons for the delay and had failed to provide an explanation for his failure to file an appeal within the 21 day limitation despite the onus being on him to do so.

The department said Mr Carr was also seeking support at the time from Red Union Support.

Joshua Carr was a senior teacher at Maryborough State High School when he refused to be vaccinated against COVID-19.

One day prior to the appeal period expiring, he had sent a letter to the department on the Red Union letterhead refuting the proposed disciplinary action to be taken, arguing why he had not been afforded workplace rights and requesting consultation regarding the risk of the Covid-19 vaccination.

In his decision, Mr Merrell said he was not persuaded Mr Carr had provided an acceptable explanation for the delay in starting his appeal.

“Mr Carr‘s principal explanation for not starting his appeal within the limitation period is that the Department did not advise him of his right to appeal or the time limits until after the expiration of the limitation period,” Mr Merrell said in his decision.

“The bare fact that the department, in the decision, did not advise Mr Carr of any appeal right and the relevant time limit to appeal does not lead to a conclusion that Mr Carr has provided an acceptable explanation for his delay.

“All relevant circumstances must be considered.”

Mr Merrell said Mr Carr had been provided with a contact telephone number and a contact email address

“There is no evidence that Mr Carr engaged in such contact with that team, in a timely manner, after his receipt of the decision, to seek any advice about his appeal rights.

“For reasons which I give below, Mr Carr decided to seek advice, in relation to the decision, from an external source and Mr Carr obtained advice from that external source about challenging the decision.”

In letters written to the department, Mr Carr objected to the department’s decision to suspend him without pay until June 30 and refuted that he was liable to discipline because of his decision not to get vaccinated.

“I kindly request that you reconsider suspending me without pay for such a lengthy period of time, and insist that you afford me the opportunity to engage with me with respect to the below,” he wrote in letters addressed to the department.

“Given the extraordinary threat, I urge restraint, to stop the rushed process from destroying my vocation and ability to make a living while I exercise my workplace rights.”

But Mr Merrell found that Mr Carr was being advised by the Red Union of “a particular course in challenging the decision to suspend him without remuneration”.

“That particular course did not involve appealing the decision to this Commission. The Red Union was aware of that right prior to the expiration of the limitation period,” Mr Merrell said in his decision.

“For all these reasons, I am not persuaded that Mr Carr has provided an acceptable explanation for his delay.”

Mr Merrell acknowledged it” might be desirable for a Department to inform an employee, who has been suspended without remuneration, of their right to appeal such a decision and the time limit to start such an appeal”.

“However, there is no suggestion that the failure by the Department to advise Mr Carr of his appeal rights before the expiration of the limitation period was deliberate,” Mr Merrell said.

Mr Merrell refused Mr Carr’s application for a longer period to start his appeal.