Sankey v State of Queensland (Department of Education)
[2024] QIRC 197
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- Sankey v State of Queensland (Department of Education)[2024] QIRC 197
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Sankey v State of Queensland (Department of Education)[2024] QIRC 197
Sankey v State of Queensland (Department of Education)[2024] QIRC 197
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Sankey v State of Queensland (Department of Education) [2024] QIRC 197 |
PARTIES: | Sankey, Kirsty (Appellant) v State of Queensland (Department of Education) (Respondent) |
CASE NO: | PSA/2022/835 |
PROCEEDING: | Public Sector Appeal – Appeal against a disciplinary decision |
DELIVERED ON: | 9 August 2024 |
MEMBER: | Gazenbeek IC |
HEARD AT: | On the papers |
ORDERS: |
|
CATCHWORDS: | PUBLIC SECTOR – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – PUBLIC SECTOR APPEAL – appeal against a disciplinary decision – where the appellant is employed by the respondent as a teacher – where the appellant failed to comply with the vaccination requirements in Employment Direction 1/21 – COVID-19 Vaccinations and Direction 1/22 – COVID-19 Vaccinations – where the appellant did not hold an exemption from compliance with the vaccination direction – where the appellant was the subject of a disciplinary action decision, following a show cause process, imposing a reduction in renumeration and a reprimand – where appellant submits that the disciplinary action decision is unfair and unreasonable – where appellant’s reasons for non-compliance with the direction are the same, or are similar to, reasons unsuccessfully raised by other appellants before the Commission – where Commission may decide not to hear particular public service appeal |
LEGISLATION AND INSTRUMENTS: | Industrial Relations Act 2016 (Qld) s 451, 562A, 562B, 564 Public Health Act 2005 (Qld) s 362B Public Sector Act 2022 (Qld) s 129, 131, 133, 289, 324 Public Service Act 2008 (Qld) s 187, 188 (repealed) COVID-19 Vaccination Requirements for Workers in a high-risk setting Direction COVID-19 Vaccination Requirements for Workers in a high-risk setting Direction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) Employment Direction 1/21 – COVID-19 Vaccinations Employment Direction 1/22 – COVID-19 Vaccinations |
CASES: | Bakhash v State of Queensland (Department of Education) [2022] QIRC 362 Bowcock v State of Queensland (Department of Education) [2024] QIRC 028 Currie (Murray) v State of Queensland (Department of Education) [2022] QIRC 269 Daley v State of Queensland (Department of Education) [2023] QIRC 277 Elliot v State of Queensland (Department of Education) [2022] QIRC 362 Graf and Ors v State of Queensland (Department of Education) [2022] QIRC 451 Gundrum v State of Queensland (Queensland Health) [2022] QIRC 226 Higgins v State of Queensland (Queensland Health) [2022] QIRC 030 Johnston & Ors v Carroll (Commissioner of the Queensland Police Service) & Anor; Witthahn & Ors v Wakefield (Chief Executive of Hospital and Health Services and Director General of Queensland Health); Sutton & Ors v Carroll (Commissioner of the Queensland Police Service) [2024] QSC 2 Mahon v State of Queensland (Queensland Health) [2022] QIRC 156 Miller v State of Queensland (Department of Education) [2022] QIRC 316 Nuske v State of Queensland (Department of Education) [2023] QIRC 199 Parry v State of Queensland (Department of Education) [2024] QIRC 042 Reh v State of Queensland (Department of Education) [2023] QIRC 149 Rossiter v State of Queensland (Department of Education) [2024] QIRC 025 Saba v State of Queensland (Department of Education) [2022] QIRC 384 Tadeo v State of Queensland (Department of Education) [2022] QIRC 177 Thorley v State of Queensland (Department of Education) [2022] QIRC 133 Tilley v State of Queensland (Queensland Health) [2022] QIRC 002 |
Reasons for Decision
Introduction
- [1]Ms Kirsty Sankey (‘the Appellant’) is permanently employed by the State of Queensland within the Department of Education (‘the Department’) as a teacher at Harristown State High School.
- [2]In December 2021, the Director-General of the Department issued Employment Direction 1/21 – COVID-19 Vaccinations, followed by a revised Employment Direction 1/22 – COVID-19 Vaccinations in March 2022 (‘the Direction’). The Direction applied to all Department workers whose role required any attendance in a ‘high-risk setting’, the definition of which included secondary educational settings.[1]
- [3]As a secondary school teacher, the Direction required Ms Sankey to have received a first dose of a COVID-19 vaccine by 17 December 2021, and to have received the prescribed number of doses of a COVID-19 vaccine by 23 January 2022,[2] unless she was granted an exemption from complying with the Direction.[3]
- [4]It is not in dispute that Ms Sankey chose not to comply with the Direction by not receiving any COVID-19 vaccinations. It is also not in dispute that Ms Sankey did not hold an approved exemption from the application of the Direction.[4]
- [5]While Ms Sankey was initially suspended from duty with normal renumeration for her non-compliance with the Direction, she was suspended without pay on 21 January 2022, following a separate show cause process.[5]
First show cause notice
- [6]On 10 June 2022, Mr David Miller (Executive Director, Early Learning and Development) issued Ms Sankey a show cause notice inviting her to respond within 14 days to the following allegation (‘the allegation’):
Allegation: You have contravened, without reasonable excuse, Clause 5 of the Direction, by failing to receive the prescribed doses of a COVID-19 vaccine and/or show evidence of having received the prescribed doses of a COVID-19 vaccine in line with Clause 6 of the Direction.[6]
- [7]On 24 June 2022, Ms Sankey responded to the first show cause notice, in which she did not dispute that she was an employee to whom the Direction applied, that she had not received the prescribed number of doses of the COVID-19 vaccine, and that she did not hold an approved exemption.[7]
- [8]Instead, Ms Sankey submitted that her compliance with the Direction is dependent on the Department meeting their “industrial and legislative requirements.”[8] She noted several concerns she held about the Direction, including that the Department:
- had taken a “one-size-fits-all style approach to the employment direction”;
- had not considered reasonable alternatives used in other workplaces, like “moving staff to less contact-prone environments” and using “Rapid-Antigen testing approved by the TGA in [the] workplace”;
- had not recognised that “the current COVID-19 Vaccination Requirements for Workers in a high-risk setting Direction (No. 2), referred to in [the first show cause notice] and applicable to the profession at large in Queensland, actually allows for unvaccinated workers to return so long as Rapid Antigen Testing is performed every second day, so long as a risk assessment is carried out”;[9]
- had not acted in accordance with its consultation obligations; and
- had failed to individually consult her and other affected Department workers, preventing them from being in a position to make a more informed decision.
Second show cause notice
- [9]On 1 August 2022, Ms Anne Crowley (Assistant Director-General) (‘the decision-maker’) wrote to Ms Sankey, informing her that she had determined the allegation to be substantiated on the balance of probabilities (‘the second show cause notice’).
- [10]Having made disciplinary findings against Ms Sankey pursuant to section 187(1)(d) of the (now repealed) Public Service Act 2008 (Qld), Ms Crowley proposed the disciplinary action of “a reduction in renumeration, from B03-02 to B03-01, for a period of 20 weeks, at which time [the Appellant] will automatically revert to [her] previous increment, and a reprimand.”[10]
- [11]Ms Sankey was afforded seven days to show cause why the proposed disciplinary action should not be taken.
- [12]In her response to the second show cause notice dated 8 August 2022, Ms Sankey submitted that “a reduction in my renumeration, or any other financial penalty, ought to be considered harsh or excessive”.[11] She outlined a number of reasons for believing the proposed disciplinary action to be unnecessary, including (as summarised) that:[12]
- she had already been penalised for being in breach of the Direction, given she was suspended without pay;
- she had already been disciplined for her conduct (although later noting that she had a clean work record with no history of discipline)[13];
- staff are no longer required to be vaccinated, and a financial penalty would be considered excessive by the public;
- a reprimand alone would be more appropriate, and would still address the Department’s loss of trust in the employment relationship; and
- a financial penalty would negatively impact her mental health and her financial circumstances.
The disciplinary decision
- [13]On 22 August 2022, Ms Crowley informed Ms Sankey of her decision to impose the disciplinary action, pursuant to s 188(1) of the Public Service Act 2008 (Qld), of a reduction in renumeration, from B03-02 to B03-01, for a period of 18 weeks (following which Ms Sankey would revert to the previous increment), and a reprimand.[14]
- [14]This disciplinary action decision of 22 August 2022, is the subject of Ms Sankey’s appeal, filed on 12 September 2022.[15]
Initial proceedings before the Commission
- [15]Ms Sankey’s appeal was listed for a mention before Vice President O'Connor on 18 April 2024. At this mention, Ms Sankey confirmed that she wished to continue with her appeal.[16] His Honour accordingly instructed the Appellant that directions would be issued in preparation for a Member of the Commission to determine the matter on the papers.[17]
- [16]A Directions Order was issued by the Registry on 18 April 2024, directing the parties to file written submissions on whether the Commission should decide not to hear the appeal pursuant to s 562A(3) of the Industrial Relations Act 2016 (Qld) (‘the IR Act’).[18]
- [17]Submissions were filed by both parties in accordance with these directions.
- [18]This matter was subsequently allocated to me on 20 June 2024 for consideration. Pursuant to s 451(1) of the IR Act, no hearing was conducted in deciding this Appeal, and this matter was decided on the papers.
Preliminary matters
Legislative framework
- [19]The new Public Sector Act 2022 (Qld) (‘the PS Act’) commenced on 1 March 2023, which repealed the previous Public Service Act 2008 (Qld)[19] in effect both at the time of the disciplinary action decision and when Ms Sankey filed her appeal.
- [20]Section 324 of the PS Act provides the following:
- This section applies if –
- before the commencement, a person appealed against a decision under the repealed Act, section 194; and
- immediately before the commencement, the appeal had not been decided.
- From the commencement, the appeal must be heard and decided under chapter 3, part 10.
- [21]Immediately before the commencement of the PS Act, Ms Sankey’s appeal against the disciplinary action decision had not been decided. Ms Sankey’s appeal is now to be decided under ch 3 pt 10 of the PS Act.
- [22]
Issue for determination
- [23]The issue for my determination in the present appeal is the issue on which the parties have filed written submissions, namely, whether the Commission should decide not to hear the appeal pursuant to section 562A(3) of the IR Act, which provides:
562A Commission may decide not to hear particular public service appeals
…
- The commission may decide it will not hear a public service appeal against a decision if –
- 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
- 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 –
- is frivolous or vexatious; or
- is misconceived or lacks substance; or
- should not be heard for another compelling reason.
- [24]For clarity, I note that ordinarily the Commission is to decide an appeal against a disciplinary decision by reviewing the decision appealed against to determine whether it was fair and reasonable,[23] “having regard to the evidence available to the decision maker when the decision was made.”[24] A public sector appeal is therefore not an opportunity for a fresh hearing, and findings that were reasonably open to the decision-maker on the relevant material or evidence before them should not be expected to be disturbed on appeal. It is for this reason that arguments of the Appellant in relation to information not before the decision-maker (for example, the Appellant’s pregnancy plans) have been considered irrelevant or misconceived below.
Submissions
Appellant’s grounds of appeal
- [25]The Appellant’s reasons for appealing the disciplinary action decision can be summarised as follows:[25]
- Ms Sankey does not believe that the decision-maker considered at all, or sufficiently, her show cause responses;
- she believes that her disciplinary action decision was sent as part of an “automated response sending program”, noting that the number of staff who received an identical outcome is “at least greater than one hundred”;
- it is “abundantly clear that the decision maker did not provide reasons for the decision that included consideration of any information provided” by her;
- she has not received a response tailored to the “unique matters” she raised in her responses, and believes this treatment is “akin to not having the opportunity to respond at all”;
- the Direction was not reasonable;
- COVID-19 “has not proven to be a significant threat to human health” and only “a very small portion of the general population is at risk of becoming seriously ill” from COVID-19;
- COVID-19 vaccines “do not reduce the transmission of “Covid-19” and none of the manufacturers have made any claims that the products they have available can reduce transmission”; and
- the Direction contravened existing legislative protections, for example in the Privacy Act 1988 (Cth) and the Human Rights Act 2019 (Qld).
Initial submissions of the Appellant
- [26]Ms Sankey filed written submissions in respect of s 562A of the IR Act on 17 May 2024. In summary, she contended that she had an arguable case for the appeal because:[26]
- the decision-maker had disregarded s 17(c) of the Human Rights Act 2019 (Qld) (‘the HR Act’), which provides that a person must not be subjected to medical treatment without the person’s full, free and informed consent;
- a vaccination is a medical treatment, and she could not give her full, free and informed consent to being vaccinated against COVID-19, given the lack of “accurate and relevant information” about, and “adequate knowledge and understanding of the benefits and material risks” of, the vaccine;
- at the time of the Direction, she was planning on falling pregnant, but did not disclose these circumstances to the Department as the Privacy Act 1988 (Cth) does not require her to do so;
- at the time of the Direction, “there was no long term safety data available that allowed [her] to give [her] full, free and informed consent to the medical treatment of Covid 19 vaccines” particularly in respect to the effects of the vaccine on her “fertility, preconception, conception and pregnancy as well as potential side effects for [her] future child”;
- the decision-maker prioritised considering the health of the community over her own health or the health of her future children;
- the Department should have engaged in more extension consultation regarding the Direction, and should have been more cooperative;
- receiving the vaccine “solely for the purpose of complying with the Direction could be considered undue influence and pressure as [her] employment was threatened and renumeration withheld”;
- the decision-maker’s assertion that her decision is “compatible with human rights” is a “bold statement considering the directive was neither reasonable nor lawful”;
- the vaccination “requested cannot be removed from [her] body once [her] duties as a secondary teacher are performed on the site”; and
- Martin J’s decision in Johnston & Ors v Carroll (Commissioner of the Queensland Police Service) & Anor; Witthahn & Ors v Wakefield (Chief Executive of Hospital and Health Services and Director General of Queensland Health); Sutton & Ors v Carroll (Commissioner of the Queensland Police Service)[27] (‘Johnston’) that similar directions of the Queensland Police Service (‘QPS’) and the Queensland Ambulance Service (‘QAS’) were unlawful, supports her appeal of the disciplinary action decision.
Submissions of the Respondent
- [27]
- while Ms Sankey has argued that the disciplinary action decision failed to consider her personal circumstances, both of her show cause responses were “template TPAQ responses” that failed to identify any individual circumstances preventing her from receiving a COVID-19 vaccine;
- Ms Sankey did not provide any evidence of a medical contraindication that prevented her from being able to receive a COVID-19 vaccine;
- Ms Sankey’s “opinion that the vaccines are harmful are irrelevant to the lawfulness of the Direction[s]”, and her concerns in this regard “are not novel or unique”;
- each of Ms Sankey’s reasons for not complying with the Direction – which amount to vaccine hesitancy – have previously been determined by the Commission as not constituting a reasonable excuse for non-compliance;
- the Commission has repeatedly found that vaccine directives are not inconsistent with the HR Act;
- Martin J’s decision in Johnston concerns different vaccine mandates and has little impact on Ms Sankey’s appeal (noting, however, that Martin J did hold that any limitation on a person’s human rights under s 17(c) of the HR Act imposed by vaccine mandates was demonstrably justified and reasonable in the context of the pandemic)
- the decision to impose disciplinary action was fair and reasonable, and the disciplinary process was procedurally fair;
- solely imposed a reprimand “would not adequately reflect the nature of Ms Sankey’s insubordination”, particularly given it is not in dispute that she failed to comply with the Direction; and
- the Commission should dismiss the matter pursuant to section 562A of the IR Act, on the basis that Ms Sankey’s Appeal “is not sufficiently unique to warrant expending any further resources of the Commission”, and that it would not be in the public interest to hear the Appeal.
Further submissions of the Appellant
- [28]In response to the Respondent, the Appellant further submitted (in summary) that:[29]
- she has no legal background, and it is reasonable for her show cause responses to be in a template form;
- she is not required to reveal her private medical circumstances to her employer unless it affects her performance at work, and she wished to keep her individual circumstances (in relation to planning a pregnancy) private throughout the disciplinary process;
- there was “a lack of safety evidence” available at the time of her decision to not comply with the Direction in relation to “the long term effects the Covid vaccines have on women trying to conceive, pregnant women, and babies born from a mother vaccinated against Covid 19”;
- it is not just her “personal belief” that vaccines are harmful to pregnant women; and
- her willingness to cooperate and engage in negotiations with the Department as to her personal circumstances was dismissed by the decision-maker.
Consideration
Direction’s lawfulness and reasonableness
- [29]Ms Sankey’s argument that the Direction was unlawful and unreasonable is not a new one for the Commission’s consideration. The volume of decisions issued by this Commission finding that the Department’s Direction was lawful and reasonable is indeed so significant that further consideration of any argument to the contrary is rendered entirely unnecessary.[30] That Ms Sankey has overlooked this reliable body of decisions in relation to the very direction applicable to her employment, in favour of (her misconceived interpretation of) a singular decision of the Supreme Court in relation to the vaccine mandates of the QPS and QAS, is indicative of Ms Sankey’s refusal to acknowledge the lack of merit this particular argument possesses. This selective approach is of little benefit to Ms Sankey’s appeal; as raised by the Respondent, that case accepted expert evidence about the effectiveness of vaccination against COVID-19 and the absence of reasonably available alternatives to vaccination,[31] undermining Ms Sankey’s own arguments to the contrary.
- [30]For Ms Sankey’s benefit, I note that the Department did not implement the Direction haphazardly, or solely of its own volition. It was implemented to ensure that the Department themselves complied with the directions of the Chief Health Officer (‘the CHO’), namely COVID-19 Vaccination Requirements for Workers in a high-risk setting Direction of 11 December 2021, and the revised COVID-19 Vaccination Requirements for Workers in a high-risk setting Direction (No. 2) of 4 February 2022 (‘the CHO Direction). The CHO, as the most senior medical officer in Queensland, gave these directions pursuant to s 362B of the Public Health Act 2005 (Qld),[32] in an attempt to supress a potentially deadly virus.
- [31]The Department was obliged to comply with the CHO Direction, and it was entirely reasonable for the Department to implement the Direction (which is not materially different from the CHO Direction) to ensure they did so.[33] Ms Sankey’s argument in her first show cause response that unvaccinated workers could return to work is an oversimplified reading of the CHO Direction, which directs that a worker “must not enter and remain in, work in, or provide services in a high-risk setting” (including a high school) unless they are fully vaccinated.[34] The CHO Direction provides merely that unvaccinated workers can be permitted to work in a high-risk setting “for a maximum period of one month” in, for example, the event of a critical workforce shortage[35] or if they are responding to critical support needs.[36] As such circumstances do not appear relevant to Ms Sankey, she could not lawfully enter, or work at, Harristown State High School, and the Department was (amongst other things) required to take all reasonable steps to prevent her from doing so.[37]
- [32]I would lastly direct the Appellant to the numerous decisions of this Commission finding that vaccination directives are not inconsistent with the Human Rights Act 2019 (Qld).[38]
- [33]I am not persuaded that the Appellant has identified any reason for me to deviate from a reliable body of decisions confirming that the Direction was lawful and reasonable. Failure to comply with a lawful and reasonable direction is a serious act of insubordination.[39] As the lawfulness and reasonableness of the Direction cannot be disputed, it is inevitable that Ms Sankey would be sanctioned for failing to comply with them.
- [34]Ms Sankey’s argument is regardless misconceived; it is of no relevance to her appeal generally or to the issue for my present determination. It was not the function of the decision-maker to determine whether the Direction was unlawful or invalid when making the disciplinary action decision,[40] but rather to determine Ms Sankey’s liability for disciplinary action under s 188(1) of the Public Service Act 2008 (Qld).
Procedural fairness
- [35]The Appellant has made several arguments in relation to not being afforded natural justice and procedural fairness, all of which have already been considered by this Commission and do not warrant any further substantial consideration. I am satisfied that the disciplinary action decision was procedurally fair; the Appellant was provided with the details of the allegation and with an opportunity to respond, and to make submissions in respect of the proposed disciplinary action.[41]
Failure to consider the Appellant’s personal circumstances
- [36]The Appellant submitted that the disciplinary action is unreasonable and unlawful because the decision-maker failed to consider her personal circumstances (e.g., her pregnancy plans).[42] However, the Appellant herself failed to raise these personal circumstances, or to provide any evidence of a medical contraindication that would prevent her from being vaccinated against COVID-19, at any point in the disciplinary process. The Appellant’s contention that the decision-maker should have considered these personal circumstances in her decision, and offer her a response tailored to these circumstances, is therefore perplexing; while the Appellant may not believe she is required to share such information with the Department and chose not to do so (a matter that is regardless beyond my jurisdiction), the decision-maker cannot then be expected to attempt an exercise in mindreading to uncover it. This argument need not be further considered.
Failure to consider information provided by the Appellant
- [37]The matters that Ms Sankey did raise in her show cause responses related, in short, to the Department’s consultation obligations, reasonable alternatives to vaccination, and risk assessments. In her Appeal Notice, the Appellant argued that the decision-maker failed to consider any of the information provided by her in her show cause responses, and that this treatment “has been akin to not having the opportunity to respond at all.”[43]
- [38]Even a cursory glance at the contents of the show cause notices, show cause responses, and the disciplinary action decision, reveals this to be untrue. The decision-maker did clearly review and consider such arguments in making her decision; as one example, in the second show cause notice, the decision-maker states that they do not accept the Appellant’s submissions regarding “the department’s alleged failure to consider reasonable alternatives” or “to consider its obligations as an employer”, and regarding “efficacy, risks or otherwise of the vaccination requirements”.[44]
- [39]The question before the decision-maker was essentially whether, on the basis of the material before them, disciplinary action should be imposed on the Appellant for her failure to comply with the Direction without a reasonable excuse. I agree with the submission of the Respondent that the arguments raised by the Appellant throughout the disciplinary process amount to vaccine hesitancy,[45] which this Commission has repeatedly determined does not constitute a reasonable excuse for non-compliance with a lawful direction to be vaccinated.[46] The points raised by the Appellant in her show cause responses were not in relation to why she was unable to receive a COVID-19 vaccine (e.g., a medical contraindication), which may have been of some relevance. Instead, her responses only demonstrated that she was unwilling to receive a COVID-19 vaccine and to comply with the Directive. The Appellant’s grievance is therefore likely better characterised as being that the decision-maker was not persuaded by, and did not entertain at length, the information the Appellant presented.
- [40]For completeness, the fact that the decision-maker has not “descended into the minutiae” of the responses provided by the Appellant, does not deprive the Appellant of understanding the reasons for the disciplinary action decision.[47] In the present circumstances, I find that it instead demonstrates the decision-maker’s ability to discern which matters raised by the Appellant are consequential to the issue for her determination.
- [41]Further consideration of this issue is, regardless, unnecessary. While the Appellant may feel that she raised unique matters in her responses during the disciplinary process, those raised are ones that this Commission has encountered time and time again.
- [42]For example, this Commission has already addressed the Department’s consultation obligation. As found by Industrial Commissioner Power in Tadeo v State of Queensland (Department of Education), the Department met its consultation obligation by consulting with the relevant registered unions representing affected employees and were not required “to consult with employees on an individual basis, particularly in [the] circumstance in which it has approximately 85,000 employees.”[48] In any case, given the Appellant’s refusal to provide the Department with information as to her personal circumstances, I am not persuaded by her argument that she “was willing to cooperate and engage in negotiations with [her] employer regarding [her] personal circumstance”, or that individual consultation occurring would have changed her opinion on vaccination.[49]
- [43]While Ms Sankey may present her belief in the suitability of alternatives to vaccination as uncontroversial (e.g., that it is “uncontroversial that Rapid Antigen Testing would exist as a far more suitable control mechanism than a Covid-19 vaccine”), it is by now well-established that the Department is not required to accept or entertain these views, to defer to the ‘evidence’ presented by the Appellant, or to allay the Appellant’s concerns about receiving a COVID-19 vaccine.[50]
- [44]It has also already been determined by this Commission that “an obligation for a duty holder [like the Department] to undertake a risk assessment…does not, of itself, create a right by an employee to demand a documented copy of that risk assessment.”[51] As further noted by Industrial Commissioner Dwyer in Gundrum v State of Queensland (Queensland Health), “Covid vaccine safety has been evaluated and confirmed as safe by the Australian Technical Advisory Group on Immunisation…and as such there is no reasonable basis for [the Appellant] to demand a risk assessment or complain [they] did not receive one.”[52]
Mail-merge issue
- [45]Lastly, the Appellant argues that the decision-maker did not pay any, or enough, consideration to her submissions when making their decision, as the disciplinary action decision she received was sent as part of an “automated response sending program” that sent identical outcomes to “at least…one hundred” staff”.[53] She further submits that “it is abundantly clear from the pattern and similarity of responses received by my colleagues that my disciplinary outcome was a fait accompli”, although later noting her evidence of this was “circumstantial”.[54]
- [46]This argument has already been thoroughly addressed by Vice President O'Connor in Nuske v State of Queensland (Department of Education).[55] As the Appellant has not endeavoured to distinguish her own argument from this decision or present any evidence in support of her claims, and because I agree with His Honour’s decision, there is no justification for considering this issue further.
Other matters
Coercion/undue influence
- [47]
- [39]By the Direction, the Director-General of the Department was not coercing each Appellant to receive a medical service or an invasive medical procedure. It was up to each Appellant as to whether or not they would comply with a lawful direction given to them by their employer. The direction to be vaccinated is no different to any other lawful direction given by an employer to an employee about a matter concerning the employee’s health and safety or the health and safety of other employees or persons associated with the employer’s undertaking. Some employees may, for a range of reasons, no comply with such a direction. But that is a matter for each employee. The fact that there may be disciplinary consequences for the failure of an employee to comply with such a direction does not mean that each Appellant was being coerces into receiving a dose or doses of a COVID-19 vaccine. The will of each Appellant was not being overborne. Each Appellant had a real choice as to whether or not they complied with the Direction.
- [48]I agree entirely with the decision of His Honour in this regard and find there to be no reason to consider this issue further.
Lack of safety data for the COVID-19 vaccine
- [49]Ms Sankey has submitted that no adequate information relevant to her personal circumstances was available at the time the Direction first came into effect in December 2021. As already noted, Ms Sankey elected to not make the decision-maker aware of her personal circumstances, and so this point is irrelevant to any consideration of whether the disciplinary action decision made was fair and reasonable.
- [50]For completeness, however, I note that six months prior to the Direction, the Royal Australian and New Zealand College of Obstetricians and Gynaecologists (‘RANZCOG’) and the Australian Technical Advisory Group on Immunisation (‘ATAGI’) issued a joint statement recommending that pregnant women are routinely offered an mRNA vaccine for COVID-19 “because the risk of severe outcomes from COVID-19 is significantly higher for pregnant women and their unborn baby”, and that “women who are trying to become pregnant do not need to delay vaccination or avoid becoming pregnant after vaccination.”[58] By 17 December 2021, RANZCOG had released a further statement reiterating the importance of COVID-19 vaccines and recommending mRNA COVID-19 vaccines for “all people trying to conceive (either spontaneously, or through IVF).”[59] This statement, as well as previous statements of a similar nature, was released on RANZCOG’s ‘Coronavirus (COVID-19) information hub’ webpage, a link to which was included in the same Therapeutic Goods Administration report of 16 December 2021[60] relied upon by the Appellant in her submissions.[61]
- [51]This Commission makes its decisions “in reliance on the best evidence available from independent medical and scientific authorities”,[62] and will continue to do so. If Ms Sankey took a similar approach, the endorsement of the COVID-19 vaccine by the peak body for women’s health in Australia and New Zealand ought to have alleviated her concerns. However, Ms Sankey is entitled to her views about the risks posed by the COVID-19 pandemic and by the COVID-19 vaccine, however they differ from the body of medical and scientific evidence to the contrary.
- [52]In any event, and as stated above, the Commission has repeatedly determined that vaccine hesitancy does not constitute a reasonable excuse for non-compliance with a lawful direction to be vaccinated.[63] Vaccine hesitancy stemming from concerns about receiving a COVID-19 vaccine while pregnant has been similarly viewed by this Commission as not warranting an exemption from a direction to be vaccinated.[64]
- [53]It is clear from her submissions that the Appellant was hesitant to be administered the COVID-19 vaccine (if not entirely dismissive of ever needing to be administered one)[65] and decided to act in accordance with her concerns and beliefs, instead of her employer’s direction to be vaccinated. However, as determined by the Commission on several occasions, it is not incumbent on the Department to accept the Appellant’s views with respect to the COVID-19 vaccine.[66] While deciding to not comply with the Direction was no doubt a difficult choice for Ms Sankey to make, it is the choice that she has made, and she has faced the consequences of that choice accordingly. Her reasons for making this choice, and her arguments in support of her appeal, have been advanced by numerous other appellants before this Commission, all without success.
Conclusion
- [54]The submissions of the Appellant have revealed that her appeal is founded on grounds that are the same, or similar to, grounds already extensively dealt with, and rejected, by this Commission. It cannot be in the public interest for public resources to be expended on dealing with appeals that rely on arguments that this Commission has continually found to be unmeritorious.
- [55]I consider the consistent lack of merit or substance in the arguments of Ms Sankey to be a compelling reason to exercise my discretion to decline to hear Ms Sankey’s appeal, pursuant to s 562A(3) of the IR Act.
Orders
- [56]I make the following order:
- Pursuant to s 562A(3) of the Industrial Relations Act 2016 (Qld), I decline to hear the appeal.
Footnotes
[1]See definition of ‘high-risk settings’ on page 4 of Employment Direction 1/22 – COVID-19 Vaccinations.
[2]Ibid, cl 5.
[3]Ibid, cl 8.
[4]Email from Ms K. Sankey to the Department’s Covid Compliance Team, dated 24 June 2022, 2; Respondent’s submissions, filed 31 May 2024, [4].
[5]Letter from Mr D. Miller (Executive Director, Early Learning and Development, Department of Education) to Ms K. Sankey, dated 10 June 2022, 1.
[6]Letter from Mr D. Miller (Executive Director, Early Learning and Development, Department of Education) to Ms K. Sankey, dated 10 June 2022, 1.
[7]Email from Ms K. Sankey to the Department’s Covid Compliance Team, dated 24 June 2022.
[8]Ibid.
[9]This is a reference to the Direction from Chief Health Officer, Dr John Gerrard, effective 4 February 2022.
[10]Letter from Ms A. Crowley (Assistant Director-General) to Ms K. Sankey, dated 1 August 2022, 3.
[11]Letter from Ms K. Sankey to the Department’s Covid Compliance Team, dated 8 August 2022, 1.
[12]Ibid, 1-3.
[13]The Appellant’s arguments in this regard are contradictory. While the Appellant was suspended with renumeration (and later without), suspension is not disciplinary action pursuant to section 188 of the Public Service Act 2008 (Qld).
[14]Letter from Ms A. Crowley (Assistant Director-General) to Ms K. Sankey, dated 22 August 2022, 2.
[15]Appeal notice, filed 12 September 2022, 5.
[16]T 1-9, l 44.
[17]T 1-10, ll 1-4; T 1-5, ll 32-36.
[18]Directions Order, issued 18 April 2024.
[19]Public Sector Act 2022 (Qld) s 289.
[20]Ibid, ss 129, 131(1)(c).
[21]Ibid, 133(c).
[22]Industrial Relations Act 2016 (Qld) s 564.
[23]Ibid, s 562B(3).
[24]Ibid, s 562B(4)(a).
[25]Appeal Notice, filed 12 September 2022, 5-11.
[26]Appellant’s submissions, filed 17 May 2024, 1-3.
[27][2024] QSC 2.
[28]Respondent’s submissions, filed 31 May 2024, 1-4.
[29]Appellant’s reply submissions, filed 14 June 2024.
[30]This includes, but is not limited to: Thorley v State of Queensland (Department of Education) [2022] QIRC 133; Tadeo v State of Queensland (Department of Education) [2022] QIRC 177; Currie (Murray) v State of Queensland (Department of Education) [2022] QIRC 269; Miller v State of Queensland (Department of Education) [2022] QIRC 316; Bakhash v State of Queensland (Department of Education) [2022] QIRC 362; Graf and Ors v State of Queensland (Department of Education) [2022] QIRC 451; Reh v State of Queensland (Department of Education) [2023] QIRC 149; Daley v State of Queensland (Department of Education) [2023] QIRC 277; Rossiter v State of Queensland (Department of Education) [2024] QIRC 25; Bowcock v State of Queensland (Department of Education) [2024] QIRC 28; Parry v State of Queensland (Department of Education) [2024] QIRC 042.
[31]Johnston [2024] QSC 2, [452]; Respondent’s submissions, filed 31 May 2024, 4.
[32]As stated at the beginning of the CHO’s COVID-19 Vaccination Requirements for Workers in a high-risk setting Direction (No. 2).
[33]Graf and Ors v State of Queensland (Department of Education) [2022] QIRC 451, [26].
[34]COVID-19 Vaccination Requirements for Workers in a high-risk setting Direction (No. 2), [10]-[18].
[35]Ibid, [27].
[36]Ibid, [28].
[37]Ibid, [11].
[38]For example, see Bakhash v State of Queensland (Department of Education) [2022] QIRC 362, or Bowcock v State of Queensland (Department of Education) [2024] QIRC 28.
[39]Elliot v State of Queensland (Department of Education) [2022] QIRC 362, [27]; see also Thorley v State of Queensland (Department of Education) [2024] QIRC 026, [15].
[40]Graf and Ors v State of Queensland (Department of Education) [2022] QIRC 451, [28]-[32].
[41]See Bowcock v State of Queensland (Department of Education) [2024] QIRC 28, [18].
[42]Appellant’s submissions, filed 17 May 2024, 2.
[43]Appeal notice, filed 12 September 2022, 8.
[44]Letter from Ms A. Crowley (Assistant Director-General) to Ms K. Sankey, dated 1 August 2022, 2.
[45]Respondent’s submissions, filed 31 May 2024, [14].
[46]Saba v State of Queensland (Department of Education) [2022] QIRC 384, [34].
[47]See Gundrum v State of Queensland (Queensland Health) [2022] QIRC 226, [35]-[36].
[48][2022] QIRC 177, [51].
[49]Appellant’s submissions, filed 17 May 2024, 2.
[50]Tadeo v State of Queensland (Department of Education) [2022] QIRC 177, [47]-[49].
[51]Gundrum v State of Queensland (Queensland Health) [2022] QIRC 226, [38].
[52]Ibid.
[53]Appeal notice, filed 12 September, 5-6.
[54]Ibid, 6.
[55][2023] QIRC 199.
[56]Appellant’s submissions, filed 17 May 2024, 2.
[57][2022] QIRC 451, [39].
[58]Australian Government – Department of Health and Aged Care, ‘Joint statement between RANZCOG and ATAGI about COVID-19 vaccination for pregnant women’ (Web Page, 9 June 2021) < https://www.health. gov.au/news/joint-statement-between-ranzcog-and-atagi-about-covid-19-vaccination-for-pregnant-women>
[59]Royal Australian and New Zealand College of Obstetricians and Gynaecologists, ‘RANZCOG reiterates advice on COVID-19 vaccination’ (Web Page, first issued 17 December 2021 and last updated 3 July 2023) < https://ranzcog.edu.au/news/ranzcog-reiterates-advice-on-covid-19-vaccination/>
[60]Therapeutic Goods Administration, ‘COVID-19 vaccine weekly safety report – 16-12-2021’ (Web Page, 16 December 2021) < https://www.tga.gov.au/news/covid-19-vaccine-safety-reports/covid-19-vaccine-weekly- safety-report-16-12-2021>
[61]Appellant’s submissions, filed 17 May 2024, 3.
[62]Daley v State of Queensland (Department of Education) [2023] QIRC 227, [24].
[63]Saba v State of Queensland (Department of Education) [2022] QIRC 384, [34].
[64]Mahon v State of Queensland (Queensland Health) [2022] QIRC 156, [45]-[47].
[65]In that regard, I note that the Appellant exclusively referred to COVID-19 and COVID-19 vaccinations in inverted commas in her Appeal notice, which could have the connotation of indicating that the Applicant finds these terms to be inaccurate or unacceptable in some way.
[66]For example, see Tilley v State of Queensland (Queensland Health) [2022] QIRC 002; Higgins v State of Queensland (Queensland Health) [2022] QIRC 030.