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Triplow v Leidos SAR Services Pty Ltd[2024] QIRC 12

Triplow v Leidos SAR Services Pty Ltd[2024] QIRC 12

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Triplow v Leidos SAR Services Pty Ltd [2024] QIRC 12

PARTIES:

Triplow, Andrew

(Complainant)

v

Leidos SAR Services Pty Ltd

(Respondent)

CASE NO:

AD/2023/28

PROCEEDING:

Application in existing proceedings

DELIVERED ON:

24 January 2024

MEMBER:

Dwyer IC

HEARD AT:

On the papers

ORDER:

  1. Pursuant to section 541(b)(ii) of the Industrial Relations Act 2016 (Qld) matter number AD/2023/28 is dismissed.

CATCHWORDS:

DISCRIMINATION LEGISLATION – HUMAN RIGHTS – GENERALLY – complaint of discrimination on the basis of impairment – where the Complainant is employed by Leidos SAR Services Pty Ltd as a Drop Master – where COVID-19 Vaccination Requirements for Workers in a High-Risk Setting Direction required the Complainant to receive the first dose of a COVID-19 vaccine by 17 December 2021 and the second dose of a COVID-19 vaccine by 23 January 2022 – where Complainant did not comply with direction – where Complainant provided a medical certificate as evidence of a medical contraindication to COVID-19 vaccines – where Complainant was advised the medical certificate was insufficient to provide a medical contraindication to COVID-19 vaccines – inadequate evidence of impairment – matter otherwise has no prospects of success – matter dismissed

LEGISLATION:

Anti-Discrimination Act 1991 (Qld), s 7, s 8, s 10, s 11, s 15, s 124, s 164, s 166, s 174B, s 178, Schedule 1

Australian Constitution, s 51, s 109

Biosecurity Act 2015 (Cth)

COVID-19 Vaccination Requirements for Workers in a High-Risk Setting Direction

Human Rights Act 2019 (Qld), s 12, s 13, s 17, s 19, s 75, Subdivision 3, Part 4

Industrial Relations Act 1999 (Qld), s 331

Industrial Relations Act 2016 (Qld), s 541

Public Health Act (Qld) 2005 (Qld)

Work Health and Safety Act 2011 (Qld), Divisions 1 – 4

CASES:

Campbell v State of Queensland (Department of Justice and Attorney-General) [2019] ICQ 18

Elliott v State of Queensland (Queensland Health) [2022] QIRC 332

Graf v State of Queensland (Department of Education) [2022] QIRC 451

Kassam v Hazzard; Henry v Hazzard [2021] NSWCA 29

State of Queensland v Lockhart [2014] ICQ 00

Reasons for Decision

Introduction

  1. [1]
    On 11 January 2022, Mr Andrew Triplow complained to the Queensland Human Rights Commission ('the QHRC') that Cobham Aviation Services Australia Pty Ltd ('Cobham') discriminated against him on the basis of impairment in contravention of the Anti-Discrimination Act 1991 (Qld) ('the AD Act').[1]
  1. [2]
    In circumstances set out later in these reasons, Mr Triplow was subsequently granted leave to amend his complaint to substitute Cobham with 'Leidos SAR Services Pty Ltd' ('the respondent') who was his employer at all relevant times.
  1. [3]
    Mr Triplow was employed by the respondent as a Drop Master in the Cairns Airport precinct at the time his employment was terminated on 23 December 2021. Mr Triplow’s termination occurred in circumstances where he failed to comply with a direction to be vaccinated against COVID-19.
  1. [4]
    The direction to be vaccinated against COVID-19 was issued pursuant to the COVID-19 Vaccination Requirements for Workers in a High-Risk Setting Direction, a direction issued by Queensland’s Chief Health Officer pursuant to the Public Health Act (Qld) 2005 (Qld) ('the direction').
  1. [5]
    The direction contained inter alia the following relevant paragraphs:

…

  1. A worker must not enter and remain in, work in, or provide services in a high-risk setting unless the worker complies with the COVID-19 vaccination requirements in paragraph 18.

…

  1. The COVID-19 vaccination requirements are that:
  1. by 17 December 2021, a worker in a high-risk setting has received the first dose of a COVID-19 vaccine; and
  2. by 11.59pm AEST on 23 January 2022, a worker in a high-risk setting has receive the prescribed number of doses of a COVID019 vaccine; and
  3. as soon as reasonably practicable after each dose of the COVID-19 vaccine, the worker must show evidence of having received the COVID-19 vaccine dose as provided in paragraph 19.

…

  1. Paragraph 9 does not apply to a worker who is unable to be vaccinated due to a medical contraindication where the responsible person for the high-risk setting:
  1. assesses the risk to other staff, clients and other persons at the high-risk setting; and
  2. the worker undertakes a COVID-19 PCR test before starting work each day and provides a negative test result to the responsible person for the high-risk setting as soon as reasonably practicable after the result is received; and
  3. the worker uses personal protective equipment as required by the responsible person for the high-risk setting.
  1. A worker in a high-risk setting to whom paragraph 20 applies must provide evidence of the medical contraindication.
  1. [6]
    On 3 December 2021, Mr Triplow was informed that, as an employee based at the Cairns Airport, he would be subject to the direction, which would come into effect on 11 December 2021.
  1. [7]
    On 7 December 2021, Mr Triplow sent an email to Ms Kathleen Zeidler, Head of Human Resources. Mr Triplow’s email attached a medical certificate issued by Dr Prabhakara Palla, General Practitioner, Redlynch Village Medical Centre dated 11 October 2021. The medical certificate read:

"Mr Andrew Triplow has had significant adverse reaction to vaccination. He had multiple vaccinations when the adverse event happened so it’s uncertain which vaccination result in adverse event.

Given previous significant adverse event he is prefers not to have COVID vaccination which is understandable."

  1. [8]
    On 15 December 2021, Ms Zeidler informed Mr Triplow that the medical certificate he provided was insufficient for the purposes of demonstrating a medical contraindication to a COVID-19 vaccine. Mr Triplow was further informed on 16 December 2021 that if he did not receive the first dose of a COVID-19 vaccine by 17 December 2021, he would not be able to attend the workplace.
  1. [9]
    Mr Triplow provided a response to Ms Zeidler on 18 December 2021. His response read:

"In response to your last email to me dated 16th December 2021 which contained an attachment entitled 'Letter of allegation'.

I would like to confirm that I will require access to paid leave entitlements for any period of time away from work under your direction & against my will.

The attached notice is to make you aware that requesting personal medical information, demanding I do not attend my workplace & alluding to termination of employment & loss of income (unless I accept an invasive medical procedure for which I have informed you could cause me significant actual bodily harm) are inconsistent with section 51(xxiiiA) and section 109 of the Australian Constitution 1977 (current and in force), the Biosecurity act 2015, and the Privacy act 1998.

I would ask that you retract your demands and seek resolution of this matter. A response is due by close of business Wednesday 22 December 2021."

  1. [10]
    On 21 December 2021, Ms Zeidler sent correspondence to Mr Triplow that invited him to show cause why his employment should not be terminated on the basis that he had failed to comply with the direction.
  1. [11]
    On 22 December 2021, Mr Triplow responded to the show cause notice ('the response'). Relevantly, the response did not provide any further medical evidence regarding contraindication. It did offer to provide an affidavit or statutory declaration "stating [Mr Triplow’s] eligibility for exemption" but did not clarify who the deponent would be or explain why it was not already provided.
  1. [12]
    Additionally, the response attached a template document containing nonsensical statements and purporting to have the gravitas of a legal document. It contained the usual range of flawed submissions commonly relied on by individuals opposed to workplace vaccine mandates.[2]
  1. [13]
    Following consideration of the response, Mr Triplow’s employment was subsequently terminated on 23 December 2021.
  1. [14]
    On 12 January 2022, Mr Triplow made a complaint to the QHRC. The matter was temporarily stayed because Mr Triplow also filed related proceedings in the Fair Work Commission ('the FWC') which were dealt with first. While the fate of those proceedings remains unclear, they appear to have been abandoned by Mr Triplow following the issuing of a certificate by the FWC conciliator.
  1. [15]
    One year after filing a complaint with the QHRC, on 23 January 2023, the parties participated in a conciliation conference at the QHRC, which was unsuccessful. On 7 February 2023, Mr Triplow’s complaint was referred to the Queensland Industrial Relations Commission ('the Commission') pursuant to s 166 of the AD Act.

Proceedings before the Commission

The complaint

  1. [16]
    The complaint referred to the Commission alleges discrimination on the basis of impairment. In the referral report, the QHRC characterised the complaint in the same terms. The particulars contained in the complaint relevantly provide:

"I received a directive via email from Cobham HR manager requesting me provide private medical information with threat of being ‘terminated’ if I failed to do so. I made them aware at this point that they were violating section 51, 23a of the Commonwealth of Australia Constitution act 29/7/1977 (current and in force). I stated I am unable to take the vaccine for medical reasons and that under the Qld Premiers directive 15/12/21 my position with Cobham as a dropmaster did not fit in the category as ‘Airport Work’ in accordance with the document stating: That an airport worker is, “Anyone who works in an airport terminal, or provides transport or carpark services primarily within the airport precinct, is considered a worker in an airport setting”…"

(Underlining added)

  1. [17]
    Notwithstanding it is expressed in simple terms, Mr Triplow’s complaint comprehensively sets out the basis of his application. In summary, he alleges three distinct complaints, namely:
  • a request for private medical information that violates the Australian Constitution ('the Constitution');
  • a 'medical reason' preventing him having a vaccine; and
  • the misapplication of the directive to his role with the respondent.
  1. [18]
    Of these three complaints, only the first two have any obvious links to a complaint of discrimination or other contravention of the AD Act.
  1. [19]
    With respect to discrimination, Mr Triplow’s complaint form expressly indicates that he is complaining about discrimination on the basis of impairment. In the complaint form, when asked to provide further information about his impairment, he responds:

"I am unable to take the vaccine fort (sic) medical reasons."

  1. [20]
    Additionally, the complaint form records that Mr Triplow considers he was asked unnecessary questions or asked to supply information which may lead to discrimination. This question on the complaint form is clearly a reference to the prohibitions contained at s 124(1) of the AD Act.
  1. [21]
    However, it is noted that Mr Triplow’s particulars regarding the request for information appear to place his concerns in the context of an alleged contravention of the Constitution and not s 124 of the AD Act. Further, QHRC referral does not include any reference to a complaint pursuant to s 124 of the AD Act.
  1. [22]
    The third complaint appears to be an assertion that the direction did not apply to Mr Triplow. This complaint does not directly identify any grounds consistent with a contravention of the AD Act. It is more of the character of a challenge to the lawfulness of the direction.
  1. [23]
    The complaints about (or relevant to) possible contraventions of the AD Act are discussed in detail later in these reasons.

Particulars of discrimination complaint

  1. [24]
    On 7 July 2023, the parties attended a conciliation conference before the Commission as currently constituted. The conference was transcribed. At the outset of the conference, the Commission took the opportunity to have Mr Triplow provide particulars about the 'medical reason' said to form the basis of his impairment. It is illustrative to set out the full responses given by Mr Triplow:

COMMISSIONER: Your claim, Mr Triplow, as I understand it, is that you’ve been the subject of discrimination on the basis of impairment; is that correct?

MR TRIPLOW: Yes.

COMMISSIONER: And the impairment that you contend is your apparent adverse reaction to COVID-19 vaccination?

MR TRIPLOW: Yes.

COMMISSIONER: And you say that the termination of your employment was an act of discrimination in circumstances where you - in circumstances where it arose on the basis of that impairment?

MR TRIPLOW: Yes, partially.

COMMISSIONER: All right. Can I just ask you about your - the background to your vaccination reaction? You’ve indicated in your material that you have - just bear with me while I bring it up so I get it right. You’ve indicated that you have had an adverse reaction to having had a vaccine for COVID-19; is that right?

MR TRIPLOW: Not for COVID-19, no.

COMMISSIONER: You’ve had - have you had reactions to other vaccines, have you?

MR TRIPLOW: I’ve had previous reactions to other vaccines.

COMMISSIONER: So you haven’t had a reaction to the COVID vaccine?

MR TRIPLOW: I have not taken a COVID vaccine.

COMMISSIONER: I see. Have you had - so the medical evidence that you rely on in respect of your assertion that you’ve had reactions to vaccines is that the report from Dr Palla that is dated the 11th of October 2021 that’s contained in the material?

MR TRIPLOW: Correct, yes.

COMMISSIONER: Is that the only medical evidence that you have to support your submission that you have had adverse reactions to vaccination?

MR TRIPLOW: Written, yes.

COMMISSIONER: That’s the only medical evidence you’ve got to support your submission that you have that impairment?

MR TRIPLOW: Yes.

COMMISSIONER: All right. Can I ask for the purposes of this conciliation conference and so that we can all have a better understanding of your position, can I ask what the details are in respect of what reaction you had to what vaccine?

MR TRIPLOW: Yes, as I said in that letter - certificate, I believe, I had a violent reaction to - it was actually a flu jab, but the contents of it couldn’t be confirmed. So it’s unwise, therefore, to take the vaccine that you do not understand the contents of.

COMMISSIONER: You had a single reaction to a single flu vaccination or you have a reaction every time you have a flu vaccination?

MR TRIPLOW: I haven’t taken a vaccination since the reaction.

COMMISSIONER: How long ago was that?

MR TRIPLOW: That was in 2010. No hospitalisation, no.

COMMISSIONER: Did you go to hospital or seek medical treatment?

MR TRIPLOW: Yeah, I did at the time. Yeah, well, I was - I was a paramedic at the time so I was with my colleague and was taken care of and went home.

COMMISSIONER: So did you go to see a registered medical practitioner in respect of your reaction?

MR TRIPLOW: Not then.

COMMISSIONER: Well, when did you see a medical practitioner in relation to your adverse reaction?

MR TRIPLOW: Well, I can’t remember an exact date. Sometime after that.

COMMISSIONER: How did you form the conclusion that you’d had an adverse reaction to a flu vaccine that you received in 2010?

MR TRIPLOW: Well, I’ve never had a seizure before and I had one immediately after having the vaccine.

COMMISSIONER: How long is immediately after?

MR TRIPLOW: Within minutes.

COMMISSIONER: You had a seizure immediately after you had a flu vaccine?

MR TRIPLOW: Yes.

COMMISSIONER: Were you still at the doctor’s office when you had the seizure?

MR TRIPLOW: No.

COMMISSIONER: Where were you when you had the seizure?

MR TRIPLOW: At home.

COMMISSIONER: At home. So how long - how far do you live from the doctor’s office?

MR TRIPLOW: It was about 30 minutes. Something like that.

COMMISSIONER: So not immediately after but on the same day as. Thirty minutes later.

MR TRIPLOW: Yes, about - yes.

COMMISSIONER: All right. And you were at home when you had the seizure.

MR TRIPLOW: That’s right.

COMMISSIONER: And was anybody with you?

MR TRIPLOW: No.

COMMISSIONER: And how long did you suffer the seizure for?

MR TRIPLOW: It’s hard to tell. I don’t know.

COMMISSIONER: Was it the only seizure that you suffered or did you have more subsequently?

MR TRIPLOW: I believe I only had one.

COMMISSIONER: Did you, having had the seizure, seek medical treatment for it?

MR TRIPLOW: No.

COMMISSIONER: So it’s not documented anywhere that you had a seizure and that you had medical treatment for it?

MR TRIPLOW: I don’t think so.

COMMISSIONER: Okay. All right. And that forms the basis of your refusal to comply with the directive of your employer to have a vaccine; is that right?

MR TRIPLOW: I never refused, I declined.

COMMISSIONER: Okay. Declined, but that - on that basis that in 2010, you say that you had a flu vaccine and then 30 minutes or so later, you had a seizure at home.

MR TRIPLOW: That’s correct.

(Emphasis added)

  1. [25]
    The conference failed to result in a resolution of the claim. In the ordinary course of events, a directions order would have been issued for the filing of inter alia statements of facts and contentions. However, at the closing of the conference, the respondent’s lawyers indicated an intention to file an application in proceedings.

Application in proceedings

  1. [26]
    On 31 July 2023, the respondent filed a Form 4 – Application in existing proceedings (‘the strike out application’). The strike out application sought the following orders:
  1. "1.
    Pursuant to section 541(b)(ii) of the Industrial Relations Act 2016 (Qld) (IR Act), an order that the discrimination complaint dated 11 January 2022, be summarily dismissed in its entirety on the basis that proceedings within the Queensland Industrial relations Commission (QIRC) are not necessary or desirable in the public interest.
  2. 2.
    Such further or other orders the QIRC considers appropriate."
  1. [27]
    The matter was listed for mention before the Commission on 29 August 2023.
  1. [28]
    At the mention, the parties agreed the respondent (at that time Cobham) was incorrectly named in the proceedings, and the respondent ought to be 'Leidos SAR Services Pty Ltd'. It was further agreed that the respondent (at that time) had leave to make an oral application to amend the strike out application from Cobham to Leidos SAR Services Pty Ltd. Orders were made by consent in respect of both amendments. The matter then turned to a discussion about the nature of the strike out application.
  1. [29]
    The Commission informed the parties that it would require submissions that address why, pursuant to s 541(b)(ii) of the Industrial Relations Act 2016 (Qld) ('the IR Act'), it should or should not dismiss the matter on the basis that further proceedings by the Commission are not necessary or desirable in the public interest.
  1. [30]
    Directions to that effect were issued on 29 August 2023.

Parties’ submissions

Respondent’s submissions

  1. [31]
    The respondent filed submissions contemporaneously with the application in existing proceedings. Additionally the respondent filed a statement from Ms Kathleen Zeidler. In summary, the respondent submits:
  • Mr Triplow has not identified that he has an attribute prescribed by s 7 of the AD Act;
  • Mr Triplow has not made out that direct discrimination as contemplated by s 10 of the AD Act occurred, as he has not identified an appropriate comparator who was treated more favourably in the same or similar circumstances;
  • there was no request for unnecessary information as contemplated by s 124 of the AD Act, as the request for evidence of Mr Triplow’s vaccination status or evidence of a medical exemption was reasonably required to enforce compliance with the direction; and
  • the argument that Mr Triplow is seeking to ventilate have already been extensively considered and determined by the Commission.

Mr Triplow’s submissions

  1. [32]
    Mr Triplow filed submissions on 26 September 2023. Mr Triplow’s submissions were not filed in a conventional format. Mr Triplow submits:
  • the direction is inconsistent with the Constitution, particularly s 51(xxiiiA), and is therefore invalid;
  • Mt Triplow had suffered from a "severe adverse reaction" to a vaccine in the past and receiving a COVID-19 vaccine "could cause [Mr Triplow] significant actual bodily harm";
  • Mr Triplow’s general practitioner attested to the fact that doctors are reluctant to document an injury as being caused by a vaccine because the Australian Health Practitioner Regulation Agency ('AHPRA') threatens suspension, deregistration, and other penalties for doing so;
  • Mr Triplow could not give fully informed consent to receiving a COVID-19 vaccine;
  • COVID-19 vaccines do not reduce the risk of transmission of COVID-19; and
  • COVID-19 vaccines were experimental and not approved by the relevant bodies.
  1. [33]
    Additionally, Mr Triplow’s submissions appear to indicate he now seeks to include complaints of contraventions of the Human Rights Act 2019 (Qld) ('the HR Act'). 

Respondent’s reply submissions

  1. [34]
    The respondent filed its submissions in reply on 10 October 2023. In summary, the respondent submits:
  • the Court of Appeal of the Supreme Court of New South Wales in Kassam v Hazzard; Henry v Hazzard[3] ('Kassam') found the relevant public health order did not involve an element of coercion on a doctor or other medical provider to vaccinate anyone and was therefore not inconsistent with s 51(xxiiiA) of the Constitution. The respondent submits that, like in Kassam, the direction involved no such coercion;
  • Mr Triplow was not coerced or unduly pressured to receive a COVID-19 vaccine and was free to decide whether or not he would become vaccinated. The respondent submits the consequence of the latter was that the direction would forbid his attendance at his place of work;
  • the impact of the COVID-19 vaccines on transmission were just one amongst a myriad of reasons why the direction was issued;
  • the Therapeutic Goods Administration ('TGA') had in fact approved the COVID-19 vaccines in accordance with its vaccine approval process;
  • Mr Triplow has not provided evidence of his general practitioner’s assertion that they were reluctant to document Mr Triplow’s contraindication to vaccination due to AHPRA’s threats of suspension and/or deregistration; and
  • Mr Triplow’s medical certificate does not indicate that he had a contraindication to receiving a COVID-19 vaccine and therefore fails to meet the requirement for a valid medical exemption pursuant to the directive.

Commission’s discretion to dismiss proceedings

  1. [35]
    Section 541 of the IR Act vests in the Commission a discretion to dismiss a cause or refrain from hearing or deciding a cause if the Commission considers that further proceedings by the Commission are not necessary or desirable in the public interest.[4]
  1. [36]
    In Campbell v State of Queensland (Department of Justice and Attorney-General)[5] Martin J in dealing with the application pursuant to s 541 of the IR Act wrote:
  1. [27]
    Insofar as it may confine the exercise of discretion under s 541, the purpose of the Act is stated as follows:
  1. "3
    Main purpose of Act

The main purpose of this Act is to provide for a framework for cooperative industrial relations that -

  1. is fair and balanced; and
  1. supports the delivery of high quality services, economic prosperity and social justice for Queenslanders."
  1. [28]
    The process for consideration of an application under s 541 does not require that the respondent's case be taken at its highest.  The cognate provisions in federal legislation were frequently considered by Full Benches of the federal tribunal, the Federal Court of Australia and the High Court of Australia.  The accepted approach was that the applicant bore the onus of making the claim for relief. But the ascertainment in any particular case of where the public interest lay often depended on a balancing of interests, including competing public interests, and was very much a question of fact and degree.
  2. [29]
    As the power given to the Commission by s 541 can prevent a party from pursuing relief otherwise available under the IR Act it is one which is to be exercised with due circumspection on a proper consideration of relevant materials. A "proper consideration" cannot be made where the case for the respondent is simply taken at its highest.  While the onus remains on an applicant, the requirement to consider the "public interest" cannot be satisfied if an artificial inflation of the respondent's case is applied.  Indeed, to take a respondent's case at its highest would almost always result in the dismissal of an application under this section.  On an application of this type, a respondent is not relieved of any requirement to advance a case.
  3. [30]
    In considering the public interest, regard must be had to the legislative basis of the principal relief sought and the evidence before the Commission …

(Emphasis added)

  1. [37]
    Section 541 of the IR Act is indistinguishable from its predecessor, namely s 331 of the Industrial Relations Act 1999 (Qld). Section 331 relevantly provided:

The court or commission may, in an industrial cause -

…

  1. dismiss the cause, or refrain from hearing, further hearing, or deciding the cause, if the court or commission considers -
  1. the cause is trivial; or
  1. further proceedings by the court or commission are not necessary or desirable in the public interest.
  1. [38]
    In State of Queensland v Lockhart,[6] then Deputy President O'Connor summarised the meaning of 'public interest' in relation to the exercise of discretion under s 331 in the following terms:
  1. [21]
    In O'Sullivan v Farrer, Mason CJ, Brennan, Dawson and Gaudron JJ considered the expression 'in the public interest'.  Their Honours wrote:

'Indeed, the expression, 'in the public interest', when used in a statute, classically imports a discretionary value judgment to be made by reference to undefined factual matters, confined only 'in so far as the subject matter and the scope and purpose of the statutory enactments may enable … given reasons to be [pronounced] definitely extraneous to any objects the legislature could have had in view'.'

  1. [22]
    In GlaxoSmithKline Australia Pty Ltd v Makin, the Full Bench of Fair Work Australia in considering what constitutes 'the public interest' wrote:

'Appeals have lain on the ground that it is in the public interest that leave should be granted in the predecessors to the Act for decades.  It has not been considered useful or appropriate to define the concept in other than the most general terms and we do not intend to do so.  The expression 'in the public interest', when used in a statute, classically imports a discretionary value judgment to be made by reference to undefined factual matters, confined only by the objects of the legislation in question.

Although the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters, it seems to us that none of those elements is present in this case.' (citations omitted)

(Emphasis added)

Consideration

  1. [39]
    The ascertainment of where the public interest lies requires the balancing of interests, including competing public interests.[7] It is trite to observe that there is a compelling public interest to preserve access for litigants seeking to pursue matters in the Commission. It goes without saying that the opportunity to pursue a claim before the Commission should not be extinguished by the Commission without "due circumspection on a proper consideration of relevant materials".[8]
  1. [40]
    On the other hand, it is equally important that unwilling litigants should not have to endure lengthy and costly proceedings that are demonstrably misconceived. This becomes more relevant to the broader public interest where a respondent is, for example, a public or local government entity. 
  1. [41]
    In the Commission’s view, the notion of 'public interest' is also broad enough that it can incorporate consideration of the public interest with respect to both the efficient use of the Commission’s resources and the likely impact that dealing with one proceeding will have on the Commission’s capacity to efficiently deal with other proceedings.
  1. [42]
    The respondent’s submission seeking the exercise of the Commission’s discretion are, in essence, founded in arguments as to the absence of merit in Mr Triplow’s complaint. It follows that the Commission’s consideration of their application should begin with those merit arguments. 

Inadequate evidence of 'impairment'

  1. [43]
    Even after having had the opportunity to annunciate his claim through written submissions, the precise allegation of discrimination under the AD Act that Mr Triplow makes remains somewhat elusive. Significantly, it is immediately apparent from the complaint and Mr Triplow’s submissions that there is no clear identification of the 'impairment' he purports to have, and which (he says) formed the basis for less favourable treatment. At best, it appears Mr Triplow asserts that an historic event (which he describes as a seizure) following a flu vaccination in or about 2010 was a medical contraindication to him having a COVID-19 vaccine in 2021.
  1. [44]
    According to his responses to the Commission on 7 July 2023, Mr Triplow’s complaint is that the termination of his employment is the alleged 'less favourable treatment', and it was 'on the basis of' his non-compliance with the direction (which was due to his 'impairment'). Mr Triplow must prove each of these elements to the requisite standard.[9] Unsurprisingly, the absence of a clearly pleaded attribute forms a key part of the respondent’s submission to dismiss the proceedings. 
  1. [45]
    At the conference on 7 July 2023, the Commission took the opportunity to explore the particulars of the 'medical reasons' that Mr Triplow asserts prevented him from complying with the direction. Mr Triplow provided particulars in the form of his answers that are set out above in the extracted transcript.
  2. [46]
    The questions put to Mr Triplow by the Commission were not complex. His answers were clear, albeit inconsistent at times.[10] Despite the inconsistencies, Mr Triplow’s answers are definitive.
  1. [47]
    As an aside, it is further noted the answers about his 'impairment' that Mr Triplow provided to the Commission on 7 July 2023 are significantly different to the representations he made to the QHRC in an email to Mr Ben Cooke on 6 October 2022, in which he states:[11]

My impairment does indeed prevent me from complying with my employer’s unlawful requirements. It is on my medical records that I suffered a serious/life threatening adverse reaction to a (sic) previous Vaccinations.

For this reason I have been advised by a Medical Doctor not to take the SARSCOV-2 (Covid-19) vaccination as it cannot be determined exactly what consituate (sic) of the ingredients could have been the causative agent.

(Emphasis added)

  1. [48]
    Mr Triplow has had legal proceedings of one form or another underway since January 2022. The adequacy of his 'medical reasons' for non-compliance has always been a point of contention between the parties.  He has had ample opportunity to assemble any and all necessary evidence required to support this claim. Additionally, Mr Triplow was on notice by way of this interlocutory application of the respondent’s contention about lack of adequate evidence of 'impairment'.
  1. [49]
    Rather than take the opportunity to produce more compelling evidence of his alleged medical contraindication, Mr Triplow’s response largely traverses irrelevant matters pertaining to e.g., the lawfulness of the COVID-19 vaccination direction from his employer on a multitude of misconceived grounds.[12] To the extent he makes any submission about 'impairment', it is restricted to reliance on the same medical certificate he has always relied on and which is dealt with later in these reasons.[13]
  1. [50]
    While the answers about his 'impairment' provided by Mr Triplow in conference were not sworn testimony, they were recorded on transcript and, in those circumstances, the Commission is confident they reveal the full extent of the particulars of 'impairment' upon which he purports to establish his complaint. Further, given the period of time the controversy has existed between the parties and the opportunities Mr Triplow has had to address it, it is impossible to accept that the definitive answers he gave with respect to his alleged 'impairment' could be improved upon with elaboration to the extent the merits of his allegation would change. 
  1. [51]
    The AD Act defines impairment as:[14]

impairment, in relation to a person, means—

  1. the total or partial loss of the person’s bodily functions, including the loss of a part of the person’s body; or
  1. the malfunction, malformation or disfigurement of a part of the person’s body; or
  1. a condition or malfunction that results in the person learning more slowly than a person without the condition or malfunction; or
  1. a condition, illness or disease that impairs a person’s thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour; or
  1. the presence in the body of organisms capable of causing illness or disease; or
  1. reliance on a guide, hearing or assistance dog, wheelchair or other remedial device;

whether or not arising from an illness, disease or injury or from a condition subsisting at birth, and includes an impairment that—

  1. presently exists; or
  1. previously existed but no longer exists.
  1. [52]
    A 'seizure' is, in broad terms, an interruption to the normal functioning of the brain. There is a broad spectrum of events that fit within the description of a seizure, many of which include lapsing into unconsciousness or loss of bodily control. The causes of seizures are equally diverse. Suffice to say that evidence of a seizure would, in all likelihood, satisfy the definition of 'impairment'. The difficulty for Mr Triplow’s is with the evidence that he suffered a seizure. 
  1. [53]
    Any form of seizure is a significant medical event for an individual. It is especially so, where it has never happened previously or where it occurs in proximity to e.g., a vaccination (as Mr Triplow alleges). The Commission considers it highly implausible that anyone who genuinely considered they had suffered such an event would take no steps to seek immediate (or any) medical attention.
  1. [54]
    Further, Mr Triplow contends he was working as a paramedic at the relevant time in 2010. In those circumstances, he would presumably have had a more advanced medical knowledge than the average person and almost certainly appreciate the seriousness of such an event. If he had genuinely suspected he had suffered a seizure (regardless of its alleged cause) it is impossible to accept that he took no steps to seek medical assistance to investigate the causes and, if necessary, obtain treatment.  
  1. [55]
    Mr Triplow’s implausible factual account of events is then further brought into doubt by the complete absence of reliable medical evidence of an 'impairment'. Firstly, there are no contemporaneous independent medical records of the alleged seizure because Mr Triplow did not seek any medical attention at the relevant time or at all. Doubts about the reliability of Mr Triplow’s account of events and the medical 'evidence' are further compounded when one has regard to the inconsistencies in his answers to the Commission and by comparing those answers to the representations that he made to the QHRC. 
  1. [56]
    Secondly, the certificate issued by Dr Palla on 11 October 2021 is little more than a regurgitation of the account of the alleged incident provided to him by Mr Triplow. For example, the opening sentence purports to state that Mr Triplow has "had a significant adverse reaction to vaccination". Given the absence of any medical intervention at the relevant time (or at all), there could be no independent medical evidence of an adverse reaction of any type. It therefore may be confidently concluded that Dr Palla’s statement about Mr Triplow’s history is founded entirely in Mr Triplow’s account of the alleged events.
  1. [57]
    The second sentence of Dr Palla’s certificate is essentially a repetition of the first sentence although notably it alludes to "multiple vaccinations" allegedly causally linked to the alleged adverse reaction. This is inconsistent with the description provided by Mr Triplow to the Commission where he confirmed it was an "immediate" reaction to a single flu vaccination.
  1. [58]
    Finally (and importantly) Dr Palla does not confirm any diagnosis consistent with a contraindication to COVID-19 vaccinations. Dr Palla makes no diagnosis at all. The certificate instead confirms that Mr Triplow "prefers not" to become vaccinated against COVID-19 because of his alleged history of an adverse event. A confirmation of Mr Triplow’s personal preference is not a medical recommendation against vaccination.
  1. [59]
    Mr Triplow has had many opportunities to validate his assertion of medical contraindication. Mr Triplow filed his discrimination compliant 11 January 2022. A conciliation conference at the QHRC occurred on 23 January 2023. The matter was subsequently referred to this Commission on 11 April 2023. The matter proceeded to conference before the Commission on 7 July 2023 during which time the apparent deficiencies in Mr Triplow’s claim were brought to his attention and discussed. Subsequently, the respondent filed an application in proceedings seeking the dismissal of Mr Triplow’s proceedings pursuant to s 541 of the IR Act.
  1. [60]
    Despite the two years that have now passed since Mr Triplow filed his complaint in the QHRC, and two conciliation conferences, and now this application, Mr Triplow has been unable to produce cogent evidence that would support a conclusion that, on the balance of probabilities, he had an 'impairment'. Having regard to the quality of evidence he has been able to produce, it is highly improbable that his position will improve.
  1. [61]
    In the Commission’s view, Mr Triplow has never been able to provide adequate proof of any medical reason as to why he could not be vaccinated against COVID-19 and in all probability he never will.  If the alleged medical contraindication is the 'impairment' he asserts, then he has failed to demonstrate to the Commission that he possesses the attribute upon which his complaint is founded.  
  1. [62]
    For completeness, it ought to be noted that the absence of an actual impairment does not entirely extinguish a claim of discrimination on the basis of an impairment. Section 8(c) of the AD Act relevantly provides:

Discrimination on the basis of an attribute includes direct and indirect discrimination on the basis of –

  1. an attribute that a person is presumed to have, or to have had at any time, by the person discriminating...
  1. [63]
    However, the great difficulty for Mr Triplow’s claim in respect of any possible contravention pursuant to s 8(c) of the AD Act is that, on the uncontroversial facts, the central issue giving rise to the termination of Mr Triplow’s employment was the inadequacy of medical evidence to support his asserted medical contraindication. The complained of actions of the respondent are inter alia their failure to accept that Mr Triplow possessed the relevant attribute. That is, the actions of the respondent are the opposite of a presumption of impairment contemplated by s 8(c) of the AD Act.
  1. [64]
    Mr Triplow broadly contends that he has been discriminated against on the basis of an impairment. For all of the above reasons, the Commission considers that there is no reliable evidence available that would allow the Commission, either now or in the future, to conclude Mr Triplow had the prescribed attribute. Further, there is no allegation made by Mr Triplow that the attribute was merely imputed by the respondent, nor is there any evidence that might support such a finding.
  1. [65]
    The absence of reliable evidence to prove the element of 'impairment' significantly undermines the merit of Mr Triplow’s complaint.

Other elements of discrimination

  1. [66]
    Putting to one side the absence of adequate evidence of 'impairment', there are additional difficulties evident with respect to Mr Triplow’s complaint of discrimination.
  1. [67]
    Mr Triplow must also prove he was treated less favourably 'on the basis of' his impairment. While it is not entirely clear, it seems the termination of his employment is central to his allegation of less favourable treatment. The full text of s 10 of the AD Act requires a comparator to establish 'less favourable' treatment i.e., less favourably than another person without the attribute would be treated in the same circumstances.
  1. [68]
    Identifying a proper comparator is always a vexed issued. In this matter, the 'same circumstances' might include an employee without a medical contraindication to vaccination who has failed to comply with a lawful and reasonable direction to be vaccinated. Alternatively, it might simply be an employee without an impairment who has failed to comply with a reasonable and lawful direction. In either case, it is patently clear that Mr Triplow’s fate was no different to the likely fate of any employee who failed to comply with the direction, regardless of impairment.
  1. [69]
    To demonstrate further the misconceived nature of Mr Triplow’s complaint, he cites in his rebuttal document filed 26 September 2023 (at page 3) that the respondent allowed two other employees an exemption on the basis of medical contraindication. He complains this is differential treatment. Mr Triplow fails to appreciate that this very scenario is inconsistent with discrimination on the basis of impairment. As the respondent points out in the statement of Ms Zeidler, the distinction between Mr Triplow and the two other employees was the adequacy of the evidence of impairment relied on to support their exemption applications, not the impairment.[15] And having satisfactorily proved their impairments, those employees were exempted.
  1. [70]
    In those circumstances, Mr Triplow is entirely unable to establish any evidence of less favourable treatment on the basis of his alleged impairment.
  1. [71]
    This leads then to consideration of the remaining element, namely discrimination 'on the basis of' a prescribed attribute. In simple terms, Mr Triplow contends he was the subject of discrimination i.e., dismissed on the basis of his impairment.
  1. [72]
    The chain of emails that are exhibited to the statement of Ms Zeidler plainly reveal that the decision to terminate Mr Triplow was because he failed to comply with the direction. To the extent it relates to the decision to dismiss Mr Triplow, there was an email exchange preceding the show cause and termination correspondence through which Mr Triplow was informed of the inadequacy of Dr Palla’s certificate to support an exemption.
  1. [73]
    It must be noted that evidence from the respondent as to its mindset on Mr Triplow’s alleged impairment is not yet fully before the Commission and has not been tested. However, there are extensive exhibits of relevant correspondence between Mr Triplow and the respondent that give clear insight into the motives for the conduct of the respondent.[16]
  1. [74]
    While it is important not to take the respondent’s case 'at its highest' when contemplating the discretion given by s 541 of the IR Act, there is equally no requirement to take their case at its lowest. In a balanced consideration of interests, unless there was some compelling contradictory evidence, there should be no reason why the Commission could not rely on relevant contemporaneous correspondence as evidence of the reasons why a respondent took certain action.
  1. [75]
    This respondent’s conclusions about Dr Palla’s certificate were not the basis of the dismissal. Further, their conclusions were entirely neutral as to the existence or otherwise of any impairment. As already discuss above, the inadequacy of Dr Palla’s medical certificate as proof of a medical contraindication is objectively indisputable. Further, the failure to secure an exemption (on the grounds of an alleged impairment) was not the basis for Mr Triplow’s dismissal. To the extent it might be argued to be an indirect influence on the decision, it was the inadequate evidence of impairment (not the alleged impairment itself) that caused the exemption to be refused.
  1. [76]
    Having regard to the email correspondence chain preceding the dismissal, it appears quite plainly that it was Mr Triplow’s failure to comply with a lawful and reasonable direction that was, exclusively, the basis upon which his employment was terminated.[17] In the circumstances, it is readily apparent that even on the case presented by Mr Triplow, the essential elements of a claim of impairment discrimination cannot be made out.
  1. [77]
    Further, Mr Triplow’s submissions in response to this application have not persuaded the Commission that he has any evidence or arguments that might alter this otherwise compelling conclusion.
  1. [78]
    Beyond the difficulties confronting Mr Triplow’s primary compliant of discrimination, it is prudent that the Commission consider any other matters relevant to Mr Triplow’s interests before reaching a conclusion on the exercise of the discretion to dismiss proceedings.

Unlawful questions

  1. [79]
    Mr Triplow’s complaint alludes to the respondent asking him to provide private medical information. Neither Mr Triplow nor the QHRC characterise this aspect of his complaint as an alleged contravention of s 124 of the AD Act. Notwithstanding this, the Commission is not bound by the QHRC’s characterisation of a complaint. In the circumstances, even where Mr Triplow is not currently pressing the matter, the viability of such a complaint should be examined before any exercise of the discretion to dismiss these proceedings.
  1. [80]
    In isolation, a request for information regarding vaccination status or medical contraindicators might offend s 124(1) of the AD Act. But the context in which the respondent sought medical information from Mr Triplow, and the specificity of their request, make it patently clear that it is a request of the type that would be exempted by virtue of s 124(3) of the AD Act in that it was requested for the purpose of compliance with the directive i.e., reasonably required for a purpose that did not involve discrimination.
  1. [81]
    The respondent had significant lawful obligations to comply with the health directive and the discharge of those obligations required them to ensure all relevant staff were either vaccinated or legitimately exempt. The only way they could comply with their obligations was to request the information. 
  1. [82]
    Alternatively, the request for medical information would be exempt in circumstances where it was necessary to protect public health or reasonably necessary to protect health and safety of people at a place of work.[18]
  1. [83]
    In the circumstances, it is clear there are multiple compelling reasons why a complaint pursuant to s 124 of the AD Act would fail.

Human rights complaint

  1. [84]
    In his complaint to the QHRC, Mr Triplow expressly excluded a complaint pursuant to the HR Act. In answer to the question whether he was complaining about a breach of his human rights, he answered "no". Unsurprisingly, the QHRC did not characterise Mr Triplow’s complaint as containing a HR Act complaint.
  1. [85]
    Notwithstanding this, parts of Mr Triplow’s submission filed on 26 September 2023 now appear to assert breaches of the HR Act.
  1. [86]
    Similarly to the approach taken above with respect to an unlawful questions complaint, prudence dictates some consideration of any possible HR Act complaint before considering the exercise of the discretion under s 541 of the IR Act. In circumstances where Mr Triplow has not previously identified a HR Act complaint, it is first necessary to examine how (or if) such a complaint might be brought within the Commission’s jurisdiction in these proceedings. The first issue is whether the Commission has jurisdiction to hear the matter.
  1. [87]
    Subdivision 3, Part 4 of the HR Act prescribes the manner for dealing with human rights complaints. The Human Rights Commissioner has a number of options for the referral of complaints subject to the type or nature of the complaint.[19] None of those options include a referral to this Commission.
  1. [88]
    However, s 75 of the HR Act provides:

Dealing with human rights complaint under the Anti-Discrimination Act 1991

  1. (1)
    This section applies if the commissioner considers a human rights complaint made or referred to the commissioner would be more appropriately dealt with by the commission as a complaint about an alleged contravention of the Anti-Discrimination Act 1991.
  2. (2)
    The commissioner may, with the consent of the complainant, deal with the complaint under the Anti-Discrimination Act 1991 as an alleged contravention of that Act.
  3. (3)
    For dealing with the complaint as mentioned in subsection (2), the complaint—
  1. (a)
    is taken to be a complaint about an alleged contravention of the Anti-Discrimination Act 1991 that is accepted by the commissioner under section 141 of that Act; and
  2. (b)
    is taken to be made on the day the human rights complaint was made or referred.

(Emphasis added)

  1. [89]
    The language of s 75 is plain: If the Human Rights Commissioner considers a complaint might be more appropriately dealt with as an alleged contravention of the AD Act, then with the consent of the complainant, the Human Rights Commissioner may deal with the matter as a complaint under the AD Act and (importantly) it is taken to be a complaint of contravention of the AD Act.[20]
  1. [90]
    Section 75 of the HR Act establishes two prerequisite conditions that must both be fulfilled before a HR Act complaint can be characterised as an AD Act complaint. The Human Rights Commissioner must first consider the matter more appropriately dealt with as an AD Act complaint and then, the complainant must consent to this.
  1. [91]
    No doubt because Mr Triplow’s complaint expressly excludes a human rights complaint, the Human Rights Commissioner was not in a position to consider there was a human rights complaint more appropriately dealt with under the AD Act. It follows then that Mr Triplow has not consented to such a characterisation by the Human Rights Commissioner either.
  1. [92]
    The re-characterisation of a human rights complaint to a complaint under the AD Act cannot occur simply at the election of a complainant. In order for a human rights complaint to be dealt with as a complaint under the AD Act it first requires the Human Rights Commissioner to form a view that the human rights complaint would be more appropriately dealt with as an alleged contravention of the AD Act.
  1. [93]
    All of this gives rise to two significant jurisdictional barriers that would prevent Mr Triplow now pressing a human rights complaint before the Commission.
  1. [94]
    Firstly s 174B of the AD Act relevantly provides:

174B  Functions of industrial relations commission

The industrial relations commission has the following functions—

  1. in relation to complaints about contraventions of this Act that are referred, or to be referred, to the commission under this Act—
  1. to make orders under section 144 before the complaints are referred to the tribunal; and
  2. to review decisions of the commissioner under section 169 about lapsing of the complaints; and
  3. to enforce agreements for resolution of the complaints by conciliation; and
  4. to hear and decide the complaints;

…

(Emphasis added)

  1. [95]
    The jurisdiction of the Commission to deal with this complaint is limited by s 174B(a) of the AD Act prima facie to the complaint that was referred to it by the QHRC. Mr Triplow’s complaint did not include any complaint about contraventions of the HR Act and the Commission therefore does not have jurisdiction.
  1. [96]
    Secondly, while s 178 of the AD Act empowers the Commission to allow amendment of the complaint, including additional matters that were not included in the referred complaint, the Commission could not permit inclusion of a claim that it has no jurisdiction to hear.
  1. [97]
    This Commission has jurisdiction to hear complaints about alleged contravention of the AD Act that are referred by the Human Rights Commissioner if the complaint is or includes a work-related matter.[21] A human rights complaint may be dealt with as an alleged contravention of the AD Act (and referred to this Commission as such) in accordance with the terms of s 75 of the HR Act.
  1. [98]
    But, as noted above, s 75 of the HR Act requires more than just Mr Triplow’s willingness to have his human rights complaint dealt with by this Commission. The plain language of s 75 of the HR Act expressly requires that the Human Rights Commissioner first considers the matter more appropriately dealt with as an AD Act complaint. That has never occurred in this matter and any human rights complaint that might now be asserted by Mr Triplow remains characterised as a complaint under the HR Act. The Commission can only deal with alleged contraventions of the AD Act.
  1. [99]
    Consequently, there could be no human rights complaint added by way of amendment pursuant to s 178 of the AD Act.
  1. [100]
    Even if the conclusions regarding jurisdiction are incorrect, Mr Triplow would still need to seek leave to amend his complaint and, for the reasons that immediately follow, a grant of leave would seem improbable given the paucity of merit to his asserted claims.
  1. [101]
    Mr Triplow appears to allege multiple contraventions. At page one of his submission, he appears to allege a contravention of s 12 of the HR Act as it operates in conjunction with the Article 23 of the Universal Declaration of Human Rights ('UDHR') which inter alia deals with the right to work. 
  1. [102]
    At page four of his submission, Mr Triplow appears to allege contravention of s 17 of the HR Act i.e., protection from torture etc. He emphasises the reference at s 17(c) to "medical or scientific experimentation".
  1. [103]
    Also at page four, Mr Triplow appears to allege contravention of s 19 of the HR Act which deals with the right to freedom of movement in Queensland. In particular, Mr Triplow notes that in discussions prior to his dismissal, the respondent noted their faciality on Horn Island could not be accessed by unvaccinated staff. Mr Triplow points out in his submission that Horn Island is part of Queensland and contends the respondent is restricting his movement.
  1. [104]
    In order to invoke the protections of the HR Act, it is first necessary for a complainant to establish which prescribed human rights are alleged to be limited. It is not necessary to descend in these reasons to a detailed analysis of the merit of Mr Triplow’s apparent assertion of human rights restrictions summarised above. Suffice to say there is an immediate appreciable absence of merit to his complaints with just a cursory perusal of his submissions regarding s 12 and s 19 of the HR Act. They are plainly misconceived.
  1. [105]
    Additionally, the Commission holds no small amount of scepticism as to the merit of the submission about the application or contravention of Article 23 of the UDHR.
  1. [106]
    But if these conclusions are incorrect, then to ensure the due circumspection necessary before the exercise of the discretion pursuant to s 541 of the IR Act, it is prudent to presume that Mr Triplow could successfully identify a relevant human right under the nominated sections. While it remains unclear from his submissions, the restrictions on his rights he asserts would (broadly) seem to be the prohibition from attending his workplace (and loss of his employment as a consequence) and apparently being subjected to medical or scientific experimentation in the form of a direction to be vaccinated against his will.
  1. [107]
    In considering how these alleged restrictions amount to limitations of his human rights, it is also necessary to consider whether the HR Act permits limitations under any circumstances.
  1. [108]
    Section 13 of the HR Act provides that human rights may be limited. Section 13(2) of the HR Act provides a non-exhaustive list of factors that may be relevant to whether a limitation is reasonable and justifiable. In his submission, Mr Triplow pre-emptively seeks to negate the limitation of his human rights by emphasising s 13(2)(c) and (d). In particular, in reference to s 13(2)(c) he contends the purpose of COVID-19 vaccination was to "prevent transmission" but contends further there is no evidence they achieve this.
  1. [109]
    Section 13 of the HR Act prescribes the manner in which human rights may be limited. The section relevantly provides:

13Human rights may be limited

  1. A human right may be subject under law only to reasonable limits that can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom.
  1. In deciding whether a limit on a human right is reasonable and justifiable as mentioned in subsection (1), the following factors may be relevant—
  1. the nature of the human right;
  1. the nature of the purpose of the limitation, including whether it is consistent with a free and democratic society based on human dignity, equality and freedom;
  1. the relationship between the limitation and its purpose, including whether the limitation helps to achieve the purpose;
  1. whether there are any less restrictive and reasonably available ways to achieve the purpose;
  1. the importance of the purpose of the limitation;
  1. the importance of preserving the human right, taking into account the nature and extent of the limitation on the human right;
  1. the balance between the matters mentioned in paragraphs (e) and (f).

(Underlining added)

  1. [110]
    Despite the ostensibly firm language of s 13(1) the terms 'reasonable' and 'justified' invite consideration of a broad scope of possibilities with respect to how or why human rights might be limited. Additionally, s 13(2) provides a broad and non-exhaustive list of factors that 'may' be relevant when considering whether a restriction is reasonable and justifiable. None of the matters prescribed by s 13(2) are expressed as having any greater weight than the others.
  1. [111]
    It is commonplace that the introduction of COVID-19 vaccination mandates occurred in many workplaces from the time that vaccines became available in or about 2021. The mandates occurred in the context of a global pandemic and at a time when the COVID-19 virus had demonstrated itself to be both highly contagious and capable of causing serious illness and death. In circumstances where vaccines were recognised by peak medical, scientific, and regulatory bodies as being both safe and effective to reduce the risk of transmission of COVID-19, governments and health authorities in each state and nationally introduced mandates for certain workplaces and venues.[22]
  1. [112]
    Mr Triplow’s submissions filed 26 September 2023 refer to s 13 of the HR Act and appear to emphasise s 13(2)(c) and (d) in a manner that suggests he relies on them. To the extent his submission can be understood they are misconceived. He contends (with respect to s 13(2)(c)) that the purpose of mandating COVID-19 vaccination was to 'prevent' transmission. There has never been any suggestion by any legitimate medical or scientific authority that vaccines were universally preventative. Their purpose has always been about reducing risk of transmission, especially when used in conjunction with other measures such as social distancing, masks, and sanitising.[23]
  1. [113]
    In addition to this, Mr Triplow appears to cite s 13(2)(d) of the HR Act but makes no submission about how it is relevant to him. He also entirely fails to address s 13(2)(e) and (f) of the HR Act which require a balancing of the 'importance of the purpose' of the limitation as against the 'nature and extent' of the limitation.
  1. [114]
    The most obvious purpose of vaccine mandates in workplaces is to manage the health and safety risk arising from the circulation of a highly contagious and potentially deadly virus in the workplace and the community. The respondent in this matter is a duty holder under the Work Health and Safety Act 2011 (Qld) ('the WHS Act') and is required to take all reasonably practicable steps to eliminate, reduce, and manage the risk of injury or death to persons in their business or undertaking. It is a broad and non-delegable duty.[24]
  1. [115]
    The highly contagious nature of COVID-19 and the potential for very serious health consequences for those infected heightens the impetus to manage the risk. While various other risk management methods such as masks are effective, the WHS Act requires a duty holder to manage the risk 'so far as is reasonably practicable'. This plainly would include the mandating of readily available vaccines that are endorsed by health authorities and pharmaceutical regulators as being safe and effective at reducing risk of transmission.
  1. [116]
    It is difficult to imagine a more important purpose justifying the limitation of a human right than the management of risk of transmission of a highly contagious and potentially deadly virus. When balancing this against the nature of the alleged limitation of Mr Triplow’s alleged human rights, it is important to be clear that the vaccine mandate does not compel him to be vaccinated i.e., he is not forced to be vaccinated. He was (and is) at all times free to decline to be vaccinated.
  1. [117]
    But Mr Triplow’s choice in this regard  has consequences. In this case it was the loss of his employment. While this consequence is unfortunate for Mr Triplow, when balanced against the lawful obligations of his former employer to protect its workers and others who access their business or undertaking, and the purpose of those protections, the paramount importance of those obligations is patently clear. Even in circumstances where Mr Triplow’s objections and concerns were not wholly misconceived and unsupported by evidence, it would be difficult to imagine a circumstance where the individual human rights of Mr Triplow could prevail over the greater good of the community at large.   
  1. [118]
    While Mr Triplow no doubt feels aggrieved at the loss of his employment, the fact that he continues to be free to exercise the choice not to receive a COVID-19 vaccine entirely negates his assertion of being subjected to involuntary medical procedures. Further, the actions of the respondent in no way restrict Mr Triplow’s movement.
  1. [119]
    Accordingly, even if Mr Triplow was able to overcome the numerous and significant jurisdictional barriers to include a human rights complaint in these proceedings, he fails to identify which of his human rights have been limited or how. But even looking past this, the exceptions provided by s 13 of the HR Act overwhelm the effect of any limitation he might establish. There is a distinct paucity of merit to the alleged human rights contraventions Mr Triplow now alleges and they would, in all probability, serve as a barrier to any grant of leave for such amendment or alternatively, cause the complaints to fail at the stage of substantive argument.

Other matters

  1. [120]
    The majority of the material filed by Mr Triplow in response to the respondent’s application to dismiss his claim continues in the same theme as his correspondence during the show cause process and his subsequent complaints to the Fair Work Commission and to the QHRC. The submissions about s 51(xxiiiA) of the Constitution and the Nuremberg trials do not warrant any further discussion. Those are arguments that have been comprehensively dismissed in other proceedings.[25]
  1. [121]
    Further, Mr Triplow’s submission that COVID-19 vaccines have not "passed efficacy/safety trials" is incorrect.[26]So too is his submission that the respondent’s mandate is an act of coercion.[27]
  1. [122]
    In any event, none of these arguments appear to have any relevant connection to these proceedings.

Conclusion

  1. [123]
    There can be no risk that the Commission’s consideration of this application has put the respondent’s case at its highest. As demonstrated above, there is barely a need to consider the respondent’s case at all, save for excluding the prospect of proscribed motives lurking behind legitimate processes.
  1. [124]
    As noted above, the plain reading of the emails attached to the statement of Ms Zeidler presents a very plausible account of the respondent’s motives in a context that has become very familiar to the Commission in its consideration of vaccine related proceedings.
  1. [125]
    While the Commission recognises the fundamental importance of access to courts and tribunals for litigants, there are obvious limits. In this matter, having regard to the respective merits of each parties arguments, the balancing of their interests plainly favours a conclusion that further proceedings are not necessary or desirable in the public interest.
  1. [126]
    Additionally, there is a significant concern that the Commission’s publicly funded resources will be unnecessarily expended on hearing what can already be seen as an irretrievably unmeritorious complaint. The public (including other litigants with matters already before this Commission) are entitled to expect the resources and time of the Commission will be expended on resolving matters of genuine controversy in a timely and cost efficient manner. That standard will soon be eroded where litigants with grievances that are wholly underwhelming in their merit are permitted too freely to place demands on the Commission’s resources.
  1. [127]
    Mr Triplow has had two years across two jurisdictions to present a valid complaint. In this matter, he only needed to present superficially meritorious arguments to evoke a beneficial public interest consideration. He has wholly failed to do so. While there can be no doubt that Mr Triplow genuinely feels a deep sense of injustice about the circumstances under which his employment ended, the depth and sincerity of his personal beliefs is not enough to warrant further hearing of his complaint.     
  1. [128]
    For all of the above reasons the respondent’s application is granted.

Order

  1. [129]
    In all the circumstances, the Commission makes the following order:
  1. Pursuant to section 541(b)(ii) of the Industrial Relations Act 2016 (Qld) matter number AD/2023/28 is dismissed.

Footnotes

[1]Anti-Discrimination Act 1991 (Qld), ss 7(h), s 10, s 11 and s 15.

[2]For example, contraventions of the Australian Constitution, s 51(xxiiiA) and s 109, the Privacy Act 1988 (Cth), and the Biosecurity Act 2015 (Cth).

[3][2021] NSWCA 299.

[4]Industrial Relations Act 2016 (Qld), s 541(b)(ii).

[5][2019] ICQ 18, [27] – [30].

[6][2014] ICQ 006, [21] – [22].

[7]Campbell v State of Queensland (Department of Justice and Attorney-General) [2019] ICQ 18, [28].

[8]Ibid, [29].

[9]AD Act, s 204.

[10]Mr Triplow at one point suggests he was "looked after" by a paramedic colleague, but then states his alleged seizure occurred while he was at home, alone, and was never the subject of medical assessment or treatment. He also suggests the adverse reaction happened "immediately" after an influenza vaccination, but then altered this to "30 minutes" later i.e., after he had left the doctor’s office and returned home. He alludes to having seen a medical practitioner "sometime after" about the reaction, then later states he did not seek medical treatment for it. 

[11]QHRC Referral filed 11 April 2023, page 11.

[12]The submissions of Mr Triplow contain a series of disjointed statements about the Human Rights Act 2019 (Qld), s 51 of the Australian Constitution, and an extract from the Nuremberg trials. They do not contain any submission about discrimination that is clear, or at all. They do not provide any additional medical evidence. 

[13]In addition to filing submissions on 26 September 2023, Mr Triplow filed a document titled 'Rebuttal to statement of Kathleen Zeidler'. While it largely deals with challenges to the lawfulness of the direction, there is a small portion that addresses the medical certificate he continues to rely on.  

[14]Anti-Discrimination Act 1991 (Qld), Schedule 1.

[15]Application in existing proceedings filed 31 July 2023. See attached Outline of Submissions at paragraph [20]. 

[16]Statement of Kathleen Zeidler filed 31 July 2023, Exhibits ‘KZ-2’ – ‘KZ-9’.

[17]Statement of Kathleen Zeidler filed 31 July 2023, Exhibits ‘KZ-2’ – ‘KZ-9’.

[18]Anti-Discrimination Act 1991 (Qld), s 107 – s 108.

[19]Human Rights Act 2019 (Qld), s 73. 

[20]Ibid, s 75(2) and (3).

[21]Anti-Discrimination Act 1991 (Qld), s 164A(2)(a).

[22]See https://www.who.int/news-room/questions-and-answers/item/coronavirus-disease-(covid-19)-vaccines; https://www.health.gov.au/our-work/covid-19-vaccines/our-vaccines/safety-side-effects

[23]See https://www.who.int/news-room/feature-stories/detail/vaccine-efficacy-effectiveness-and-protection;

[24]Work Health and Safety Act 2011, Divisions 1 – 4.

[25]See for example Kassam. See also Graf v State of Queensland (Department of Education) [2022] QIRC 451, at [66]-[67].

[26]See: https://www.who.int/news-room/questions-and-answers/item/coronavirus-disease-(covid-19)-vaccines

[27]Graf v State of Queensland (Department of Education) [2022] QIRC 451, [67].

Close

Editorial Notes

  • Published Case Name:

    Triplow v Leidos SAR Services Pty Ltd

  • Shortened Case Name:

    Triplow v Leidos SAR Services Pty Ltd

  • MNC:

    [2024] QIRC 12

  • Court:

    QIRC

  • Judge(s):

    Dwyer IC

  • Date:

    24 Jan 2024

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Ahga v Devine Real Estate Concord Pty Ltd & Ors [2021] NSWCA 29
1 citation
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Cite 1 - [2021] NSWCA 29
Campbell v State of Queensland (Department of Justice and Attorney-General) [2019] ICQ 18
3 citations
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Cite 1 - [2019] ICQ 18
Cite 2 - [2019] ICQ 18
Cite 3 - [2019] ICQ 18
Davidson v Simon Blackwood (Workers' Compensation) (2014) ICQ
1 citation
Jump To
Cite 1 - (2014) ICQ
Elliott v State of Queensland (Queensland Health) [2022] QIRC 332
1 citation
Jump To
Cite 1 - [2022] QIRC 332
Graf v State of Queensland (Department of Education) [2022] QIRC 451
3 citations
Jump To
Cite 1 - [2022] QIRC 451
Cite 2 - [2022] QIRC 451
Cite 3 - [2022] QIRC 451
Kassam v Hazzard [2021] NSWCA 299
1 citation
Jump To
Cite 1 - [2021] NSWCA 299
State of Queensland v Lockhart [2014] ICQ 6
1 citation
Jump To
Cite 1 - [2014] ICQ 6

Cases Citing

Case NameFull CitationFrequency
Pegg v Gumdale State School P&C Association [2024] QIRC 2952 citations
Sloan v TAFE Queensland [2024] QIRC 1392 citations
Talbot v State of Queensland (Queensland Police Service) [2025] QIRC 2002 citations
1

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