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  4. Sturgess v State of Queensland (Department of Education) - [2024] QIRC 236

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Sturgess v State of Queensland (Department of Education)[2024] QIRC 236

Sturgess v State of Queensland (Department of Education)[2024] QIRC 236

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Sturgess v State of Queensland (Department of Education) [2024] QIRC 236

PARTIES:

Sturgess, Alison

(Appellant)

&

State of Queensland (Department of Education)

(Respondent)

CASE NO:

PSA/2022/727

PROCEEDING:

Public Sector Appeal – Appeal against a disciplinary decision

DELIVERED ON:

26 September 2024

MEMBER:

Caddie IC

HEARD AT:

On the papers

ORDER:

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

CATCHWORDS:

PUBLIC SECTOR – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – public sector appeal – appeal against a disciplinary decision – where appellant is employed by the State of Queensland (Department of Education) as an Experienced Senior Teacher – where Employment Direction 1/22 – COVID-19 Vaccinations required the appellant to receive the first dose of a COVID-19 vaccine by 17 December 2021,  the prescribed number of doses of a COVID-19 vaccine by 23 January 2022, and to provide evidence of such vaccination by 24 January 2022 – where appellant did not comply – where respondent imposed a disciplinary penalty of reprimand and a reduction in remuneration level for a period of 18 weeks – material indicates submissions similar to those which have been unsuccessfully raised by other appellants before the commission – consideration of whether to hear the appeal – appeal has no prospects of success – appeal dismissed.

LEGISLATION:

COVID-19 Vaccination Requirements for Workers in a high-risk setting Direction – Queensland Health.

Employment Direction 1/22 – COVID-19 Vaccinations.

Industrial Relations Act 2016 (Qld) ss 562A, 564.

Human Rights Act 2019 (Qld) ss 58, 59.

Judicial Review Act 1991 (Qld) ss 3, 30, 43, 47.

Public Sector Act 2022 (Qld) ss 129, 131, 133, 289, 324.

CASES:

Carr v State of Queensland (Department of Education) [2024] QIRC 210.

Davenport v State of Queensland (Department of Education) [2024] QIRC 206.

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

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.

Mocnik v State of Queensland (Department of Education) [2022] QIRC 58.

Nuske v State of Queensland (Department of Education) [2023] QIRC 199.

O'Hearn v State of Queensland (Queensland Health) [2023] QIRC 283, [10].

Sankey v State of Queensland (Department of Education) [2024] QIRC 197.

Stacey v State of Queensland (Department of Education) [2024] QIRC 220.

Thorley v State of Queensland (Department of Education) [2022] QIRC 133.

Reasons for Decision

Introduction

  1. [1]
    Ms Alison Sturgess ('the Appellant') is employed by the State of Queensland (Department of Education) ('the Respondent') as an Experienced Senior Teacher at Victoria Point State High School.
  1. [2]
    By cl 5 of the Employment Direction 1/22 – COVID-19 Vaccinations dated 10 March 2022 ('the Direction'), Ms Sturgess was required to:
  • receive the first dose of a COVID-19 vaccine by 17 December 2021;
  • receive the prescribed number of doses of a COVID-19 vaccine by 23 January 2022; and
  • provide evidence of such vaccination by 24 January 2022.
  1. [3]
    On 14 June 2022, Mr David Miller, Executive Director, Early Learning and Development wrote to the Appellant inviting her to respond to an allegation that she had contravened, without reasonable excuse, cl 5 of the Direction ('first show cause notice').
  1. [4]
    The Appellant responded on 23 June 2022, stating, in summary:
  • Her father passed away from a heart attack shortly after receiving a COVID-19 booster, and her sister experienced adverse reactions after taking the first vaccine, and again after taking the booster. She is scared to take the vaccine because she believes she will also have an adverse reaction, noting her doctors have not provided her any reassurances that she will not have a similar adverse reaction.
  • The COVID vaccines had not been adequately tested, and comments made by the Chief Health Officer Dr John Gerrard suggested vaccine mandates would be discontinued.
  • The Appellant worked for the Department for 27 years and has extensive teaching experience. She loves her job, has helped the teacher filling her position whilst she was on leave, and she has built a rapport with her students. She is willing to work from home under a flexible working arrangement
  • She did not intend to be non-compliant with the Direction.
  1. [5]
    On 1 August 2022, Ms Anne Crowley, Assistant Director-General, Human Resources, found the Appellant had contravened the Direction without reasonable excuse, by failing to receive the prescribed doses of the COVID-19 vaccine and/or show evidence of doing so. Ms Crowley in summary found:
  • It was not disputed that the Appellant was an employee of the Department, and had a role which required her to attend schools or early childhood education and care settings, and was therefore subject to the Direction;
  • The Direction was lawful and reasonable;
  • The Appellant was aware of, or ought to have been aware of, the requirements of the Direction. Despite this, the Appellant provided no evidence of compliance with the Direction;
  • The Appellant's reasons for non-compliance with the Direction do not provide a reasonable excuse for her failure to comply, as it was open to the Appellant to contact her local GP or medical specialist to obtain the advice she needed, but she did not, and did not have an approved exemption; and
  • Ms Crowley considered alternative duties or flexible working arrangements as proposed by the Appellant, however found that the nature of the Appellant's substantive role, being in a high-risk setting, meant that no alternative duties were appropriate or feasible while the Appellant remained non-compliant with the Direction.

Ms Sturgess was informed she had a right to appeal that finding. It stated:

Appeal entitlements

If you believe that my decision to find that the allegation above is substantiated (disciplinary finding decision) is unfair and unreasonable, you may lodge a fair treatment appeal under the appeal provisions of the Public Service Act 2008. Alternatively, you may decide to wait until I have made a decision about the proposed disciplinary action and  appeal both the disciplinary finding and the disciplinary action.

  1. [6]
    As noted by Dwyer IC in Stacey v State of Queensland,[1] this passage is a departure from the usual language found in disciplinary finding decisions, and has the effect of potentially misleading the reader that both decisions can be combined in the same appeal.[2] The decision on the disciplinary finding was not appealed.[3]
  1. [7]
    In that same letter, Ms Sturgess was advised Ms Crowley was considering taking disciplinary action in the form of:
  • a reduction in remuneration, from ES4-02 to ES4-01, for a period of 20 weeks, at which time the Appellant would automatically revert to her previous increment; and
  • a reprimand.
  1. [8]
    The Appellant was afforded seven days to show cause ('second show cause letter') as to why disciplinary action should not be taken against her. In the second show cause letter, Ms Crowley noted the Appellant did not have an approved exemption. Ms Crowley also noted that consideration was given to alternative duties or arrangements, however the nature of the Appellant's substantive role was a high-risk setting, and the Appellant's non-compliance with the Direction resulted in significant operational impacts on the Department.
  1. [9]
    The Appellant responded on 8 August 2022. The Appellant, in summary, submitted that the proposed penalty did not properly consider her individual circumstances, which should differentiate her from other unvaccinated teachers. The Appellant further submitted the only appropriate penalty was a caution or reprimand, noting that she had used her sick leave and long service leave entitlements, had suffered financial penalty, and her career development was impacted, because of the Direction.
  1. [10]
    On 22 August 2022, Ms Crowley decided to impose a disciplinary action of a reprimand and a reduction in remuneration level for a period of 18 weeks ('the decision'). The decision is the subject of Ms Sturgess' appeal.

Proceedings before the Commission

  1. [11]
    The appeal was mentioned before the Commission on 4 October 2022. The appeal was placed in abeyance so that the Appellant could determine her position pending the Commission's decisions on other ongoing appeals dealing with similar matters.
  1. [12]
    A further mention was held on 18 April 2024, where the Commission noted several decisions dealing with similar matters; including decisions made by the Full Bench; had since been published. The Appellant confirmed she wished to proceed, and directions were issued for submissions regarding the Commission's discretion not to hear the appeal under s 562A(3).
  1. [13]
    The issue before the Commission is whether the appeal should be subject to an exercise of discretion pursuant to s 562A(3)(b) because the appeal is either frivolous or vexatious, misconceived or lacking in substance or should not be heard for another compelling reason.

Relevant legislation

  1. [14]
    Section 562A of the Industrial Relations Act 2016 ('IR Act') provides:[4]
  1. 562A
    Commission may decide not to hear particular public service appeals

…

  1. (3)
    The commission may decide it will not her a public service appeal against a decision if –

…

  1. (b)
    the commission reasonably believes, after asking the appellant to establish by oral or written submissions that the appellant has an arguable case for the appeal, that the appeal –
  1. (i)
    is frivolous or vexatious; or
  2. (ii)
    is misconceived or lacks substance; or
  3. (iii)
    should not be heard for another compelling reason.
  1. [15]
    For context, I note that public sector appeals are by way of review of the decision appealed against, based on the information available and the process followed in coming to the decision.  Any findings reasonably open to the decision-maker are not expected to be disturbed upon appeal.[5]
  1. [16]
    The new Public Sector Act 2022 (Qld) ('PS Act') commenced on 1 March 2023, which repealed the previous Public Service Act 2008 (Qld), which was in effect at the time of the disciplinary action decision and when Ms Sturgess filed her appeal.
  1. [17]
    Section 324 of the PS Act provides:
  1. 324
    Existing appeal
  1. (1)
    This section applies if —
  1. (a)
    before the commencement, a person appealed against a decision under the repealed Act, section 194; and
  2. (b)
    immediately before the commencement, the appeal had not been decided.
  1. (2)
    From the commencement, the appeal must be heard and decided under chapter 3, part 10.
  1. [18]
    Immediately before the commencement of the PS Act, Ms Sturgess' appeal against the disciplinary action decision had not been decided. The appeal is now to be decided under ch 3 pt 10 of the PS Act.
  1. [19]
    I am satisfied that the disciplinary action decision is one that may be appealed against, that the Appellant is entitled to do so, and that the appeal was lodged within the required time.[6]

Ms Sturgess' submissions

  1. [20]
    The Appellant's submissions were filed on 5 May 2024. These submissions largely repeated the contentions made in the Appellant's show cause responses discussed above. While I have carefully considered each of the Appellant's submissions, I do not intend on reciting them in detail in these reasons.
  1. [21]
    Outside of the matters already discussed, the Appellant in summary submits:
  • that she has sufficient reason for a "medical contraindication" based on medical evidence she contends she has already submitted to the department; and
  • the decision in Johnston & Ors v Carroll[7] found COVID vaccination directions were unlawful, and the Direction the Appellant was subject to must be equally unlawful under s 58 of the Human Rights Act 2019 (HR Act).
  1. [22]
    The Appellant also appended supporting material to her submissions including medical certificates, and an authority to release medical information for workers seeking exemption from mandatory COVID-19 vaccination dated 19 January 2022.

Respondent submissions

  1. [23]
    The Respondent filed its submissions on 31 May 2024. The Respondent, in summary, submits:
  • The Direction has been repeatedly found to be lawful and reasonable, and the matters raised by the Appellant have been extensively determined before the Commission in decisions including Mocnik & Ors v State of Queensland[8] and Nuske v State of Queensland.[9]
  • The Appellant's concerns, although genuinely held, amount to vaccine hesitancy.
  • Vaccine directives have been repeatedly held by the Commission to be not inconsistent with the HR Act. The Appellant's human rights were considered, and in any event the Direction was in the public interest and that outweighed any potential impact on her human rights.
  • The decision in Johnston & Ors v Carroll[10] concerns only vaccine mandates within the Queensland Police Service and Queensland Ambulance Service and has little impact on the present appeal.
  • The decision to issue a reduction in pay and reprimand was procedurally fair. The Appellant was placed on notice, provided particulars to support the allegations, and provided an opportunity to respond to the allegation and make submissions in respect of the proposed penalty.
  • The appeal is not sufficiently unique to warrant expending further resources of the Commission.

Appellant's submissions in reply

  1. [24]
    The Appellant filed submissions in reply on 14 June 2024. These again reassert the matters agitated by the Appellant in her show cause responses, but also further submits, in summary:
  • The Appellant is not of the view that vaccines are harmful, but rather there is a risk of harm per TGA and ATAGI documents, and that the Department did not assess that risk before issuing the Direction.
  • Her human rights were only considered after the Direction was put in place, and the Direction is therefore unlawful.
  • The Appellant submits the decision of Pidgeon IC in Thorley v State of Queensland,[11] notes the lawful source of the Direction was the COVID-19 Vaccination Requirements for Workers in a high-risk setting Direction – Queensland Health ('CHO Direction'). The Appellant submits the CHO Direction required that mandates need to be made based on the requirements of a role, and the Direction did not observe the CHO Direction as it did not consider the requirements of the Appellant's role.

Consideration

  1. [25]
    It is not controversial that Ms Sturgess failed to comply with the Direction to be vaccinated. This led to the disciplinary finding that she contravened, without reasonable excuse, a direction appropriately given. She was liable to disciplinary action, and the decision on findings was not appealed.
  1. [26]
    The decision to impose the disciplinary penalty arising from the findings and following the requisite show cause process is the decision relevant to the substantive appeal, and logically, any exercise of my discretion to decline to hear it.
  1. [27]
    It is well-established that a failure to follow a lawful and reasonable direction is serious misconduct within the ordinary meaning of the phrase.[12] The decision to confine the penalty to a reduction in classification for 18 weeks (reduced from 20 weeks) and a reprimand could be characterised as at the lighter end of the disciplinary spectrum.[13]
  1. [28]
    The Appellant's submission that she already suffered inter alia by not being able to attend her place of work, as a reason to negate the imposition of the further financial penalty, misconceives the difference between the consequences of her own decision to be unvaccinated and the penalty for her conduct of failing to comply with a direction without reasonable excuse. This issue is comprehensively laid out by Dwyer IC in Stacey:[14]
  1. [49]
    All of the hardship detailed in Mr Stacey's submissions was not a penalty imposed by the Department for noncompliance. It was a hardship that he imposed in himself and his family through his choice not to be vaccinated. Mr Stacey was entirely free to have made that choice, but the consequences of that choice are his responsibility.
  2. [50]
    By contrast, the penalty imposed by the decision is not a penalty for being unvaccinated. That fact is merely part of the particulars of the misconduct giving rise to the penalty. The penalty is imposed because Mr Stacey failed to comply with a lawful and reasonable direction.
  3. [51]
    So, to the extent that Mr Stacey asserts he has already been punished for his misconduct, he is incorrect.
  1. [29]
    Those considerations are relevant here, leading me to also conclude that to the extent Ms Sturgess asserts she has already been punished for her misconduct, she is incorrect.
  1. [30]
    Regarding the Appellant's submissions about the relevance of Thorley[15] establishing that the Appellant's individual role needed to be considered, that decision did not establish what the Appellant submits it did. In fact, Thorley was a broadly similar appeal involving a Department teacher, wherein the decision appealed against was confirmed. Importantly, the role to be considered by the Direction is not any teacher's individual role within a school, but whether their role was as a Department of Education worker with a role requiring any attendance in a high-risk setting.[16] This is made clear in cl 4 of the Direction;[17]
  1. 4.
    Application

The CHO Direction captures many Department of Education workers (excluding OIR) as the CHO direction applies to all workers in a high-risk setting and prevents entry to a high-risk setting unless the worker complies with the COVID-19 vaccination requirements with some very limited exceptions.

This Direction applies to all Department of Education workers who attend a high-risk setting as part of their role or the services they provide.

This Direction also applies to identified staff within regional and central offices who are required to be present in a school as part of their work duties, i.e. where attendance at a school is necessary to fulfil the requirements of their job.

  1. [31]
    The Appellant was such a worker, as a school teacher. In any case, the decision-maker did consider Ms Sturgess' individual role within her school, and found no alternative duties were appropriate or feasible while the Appellant remained non-compliant with the Direction.
  1. [32]
    This brings me to the submissions regarding lawfulness of the direction, including the assertion that the decision in Johnston & Ors v Carroll is relevant.

Whether the decision in Johnston & Ors v Carroll has any relevance

  1. [33]
    The decision in Johnston & Ors v Carroll concerned directions given by the Commissioner of Police to employees of Police, and the Director General of Queensland Health to QAS staff, that each staff member had to receive doses of a COVID-19 vaccine.
  1. [34]
    The QPS directions were found to be unlawful by operation of s 58 of the HR Act, as the Commissioner of Police failed to demonstrate before making the directions that she:
  1. (a)
    understood in general terms which of the rights of the persons affected by the decisions might be relevant and how those rights would be interfered with by the decision;
  2. (b)
    had seriously turned her mind to the possible impact of the decision on a person's human rights;
  3. (c)
    had identified the countervailing interests and obligations; and
  4. (d)
    had balanced competing private and public interests as part of the exercise.[18]
  1. [35]
    Martin J did not accept that the Commissioner of Police either identified the human rights that might be affected by the decision or considered whether the decision would be compatible with human rights. Ultimately, the proper consideration required by s 58(1)(b) or s 58(5) was not given.[19]
  1. [36]
    In contrast, the QAS direction did give proper consideration to human rights,[20] however was nevertheless ineffective. The QAS direction was declared to have no effect, as it did not fall within the category of directions able to be made pursuant to the implied term in the QAS staffs' contracts of employment.[21]
  1. [37]
    Firstly, it is clear that the impugned directions in Johnston & Ors v Carroll each turned on their own facts. The fact that the impugned directions involved COVID-19 vaccines has no bearing on the direction issued by the Department of Education, and therefore has no weight on the Appellant's case.
  1. [38]
    Secondly, the Commission does not have the jurisdiction to make a declaration or finding that the Direction Ms Sturgess was subject to was either unlawful or of no effect. Section 3 of the Judicial Review Act 1991 (Qld) makes it clear that a court for the purpose of applications for review under ss 30, 43 and 47 of that Act is the Supreme Court.
  1. [39]
    Thirdly, I refer to Gazenbeek IC's comments in Sankey v State of Queensland,[22] noting that the Department's issuance of the Direction was at all times appropriate:
  1. [30]
    … 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 (No. 2) of 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), in an attempt to supress a potentially deadly virus.
  2. [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.[23] 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.[24] 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 or if they are responding to critical support needs. 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.
  1. [40]
    Butler IC, as the Deputy President of the Fair Work Commission then was, also observed:
  1. [48]
    When the decisions under appeal were made, there was no decision of the Court finding any unlawfulness in relation to the Direction consequent upon the Human Rights Act, and even if there had been, that would not have the effect that the Direction was invalid. Carroll does not assist the Appellant in demonstrating he has an arguable case in this appeal.[25]
  1. [41]
    With regards to any relief sought pursuant to ss 58 and 59 of the HR Act, the Appellant submits that her human rights were not considered prior to the making of the Direction, making it in her submission analogous to Johnston & Ors v Carroll. The Appellant however has pointed to no evidence in making this assertion. In any event, the Commission has considered that COVID-19 directions more broadly are not inconsistent with the HR Act,[26] and until or unless there is any finding by a superior court that the Direction was unlawful, the Department of Education's COVID-19 Direction remains fair and reasonable.
  1. [42]
    To the extent that the Appellant's human rights are relevant to this appeal, the decision letter expressly considered the Appellant's human rights, acknowledged that the disciplinary action may limit the Appellant's human rights, and decided that the limitation was reasonably and demonstrably justified and in the public interest. This level of consideration has repeatedly been found by the Commission to be fair and reasonable.[27]

Vaccine hesitancy is not unique

  1. [43]
    The Appellant's submissions that she has a "medical contraindication" is not supported by the material before me. The Appellant anecdotally raises terrible adverse reactions her family has suffered and annexed a medical certificate from a doctor. That medical certificate does not confirm that the Appellant has any medical contraindication, and only states that the Appellant does not consent to her vaccination. This, along with the Appellant's submissions regarding a risk of harm, amount to vaccine hesitancy. That is not to suggest that the fear the Appellant identified was not genuinely felt.
  1. [44]
    The Commission has repeatedly scrutinised whether vaccine hesitancy (howsoever described) is a reasonable basis to fail to comply with a lawful and reasonable direction.  Relevant decisions of the Commission have been recently summarised by Pratt IC in Davenport v State of Queensland:[28]
  1. [19]
    In Borough v State of Queensland (Department of Environment and Science), Industrial Commissioner Hartigan, as her Honour was then, considered an appellant's argument that the direction to be vaccinated with a COVID-19 vaccine was unlawful or unreasonable because there was incomplete and insufficient information about COVID-19 vaccinations. Hartigan IC found that the appellant's concern about what he considered to be incomplete or insufficient data on the possible side-effects and efficacy of the vaccines amounted to 'vaccine hesitancy'. Hartigan IC found that those views, and the resulting hesitancy to have a vaccine administered, did not form a reasonable basis for refusing to comply with the direction to do so.
  2. [20]
    In Friis v State of Queensland (Queensland Ambulance Service) ('Friis'), Hartigan IC further considered the concept of 'vaccine hesitancy'. In that case, the term 'vaccine hesitancy' was expressly stated in the relevant policy as not constituting a legitimate basis for failing to be vaccinated. The concerns expressed by the appellant in Friis included the efficacy of the vaccines, potential risk to the safety of individuals who had vaccines administered to them, informed consent and a low rate of death from COVID-19. Hartigan IC found that the appellant was hesitant to be administered a COVID-19 vaccine because of those concerns that he held. Accordingly, the conclusion was that the basis for refusing to have a COVID-19 vaccine administered was 'vaccine hesitancy'. Whilst Hartigan IC concluded that the appellant genuinely held those concerns, and was entitled to hold those concerns and express them, the employer was not obliged to accept those views.
  3. [21]
    In Batchelor v State of Queensland (Department of Environment and Science) ('Batchelor'), Industrial Commissioner McLennan dealt with an appeal against a disciplinary decision flowing from a failure to comply with a direction to receive COVID-19 vaccinations. In that matter, McLennan IC considered reasons cited by the appellant as to why she had failed to comply with the direction. The list of reasons was long, with many of reasons being rephrased versions of other reasons. The reasons included concerns over the efficacy and safety of vaccines, the absence of a risk assessment, the lack of informed consent, claims by the appellant to have witnessed adverse reactions to vaccines and a failure to consider alternative duties for the appellant. McLennan IC considered those claims to amount to reservations, or hesitancy, about being administered a COVID-19 vaccine and concluded that that did not constitute a reasonable excuse for not complying with the relevant policy.
  4. [22]
    In Sainty v State of Queensland (Queensland Health) (No. 2) ('Sainty'), his Honour, Deputy President Merrell, considered a case where the appellant's reasons for failing to be vaccinated included anxiety and fear resulting from uncertainty of receiving a vaccination, especially after the appellant had personally witnessed negative effects on others who had been administered a COVID-19 vaccine. The appellant also stated that, throughout her life, she had faced serious and dangerous reactions to various medications. Such reactions caused her to be very frightened and in need of an in-depth personal risk assessment before receiving any medication or vaccinations without long term studied effects. His Honour found that this amounted to vaccine hesitancy and that it did not constitute a recognised medical contraindication from receiving a COVID-19 vaccine. His Honour concluded that the appellant's hesitancy was not a reasonable excuse to fail to comply with the lawful direction to be vaccinated.
  5. [23]
    In Winter v State of Queensland (Department of Education), his Honour, Deputy President Merrell, considered a case where an employee claimed to be available for work but for a suspension without remuneration. The suspension was due to the appellant's failure to comply with the Direction 1/22. His Honour relevantly held that the appellant was not "available for work" as claimed. That was because the appellant exercised a choice to not comply with Direction 1/22. It was a direct result of that choice that the appellant was unavailable for work and therefore was not entitled to be paid.
  6. [24]
    In Mackenzie v State of Queensland (Queensland Health) ('Mackenzie'), a Full Bench of the Commission affirmed that 'vaccination hesitancy' does not constitute a reasonable excuse to fail to comply with a direction to have a COVID-19 vaccine administered.
  1. [45]
    There is nothing unique in the issues being raised by the Appellant not already dispatched by the Commission. Vaccine hesitancy is not a reasonable excuse for failing to comply with the Direction.

Conclusion

  1. [46]
    Returning to the relevant considerations for the exercise of my discretion to decline to hear the appeal, I consider that the submissions made by the Appellant have not established an arguable case for the appeal.
  1. [47]
    The arguments in relation to the Direction not being lawful and not consistent with human rights are misconceived for the reasons outlined above, as are the arguments regarding the financial penalty already suffered. The reliance on medical contraindications is not supported by the evidence, and concerns regarding adverse reactions amount to vaccine hesitancy which is not an accepted defence. Indeed, all of the arguments raised by the Appellant have been considered and dismissed by the Commission on numerous occasions.
  1. [48]
    This leads me to conclude that the appeal has no reasonable prospects of success, and it would not be in the public interest for the Commission’s resources to be further expended.
  1. [49]
    For these reasons I decline to hear the appeal.

Order

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

Footnotes

[1]Stacey v State of Queensland (Department of Education) [2024] QIRC 220 ('Stacey').

[2]Ibid, [13].

[3]The filed material makes it clear the Appellant lodged an appeal only in relation to the disciplinary action.

[4]Emphasis added.

[5]O'Hearn v State of Queensland (Queensland Health) [2023] QIRC 283, [10].

[6]Public Sector Act 2022 (Qld) ss 129, 131(1)(c), 133(c); Industrial Relations Act 2016 (Qld) s 564.

[7]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 ('Johnston & Ors v Carroll')

[8]Mocnik v State of Queensland (Queensland Health) [2023] QIRC 58 ('Mocnik').

[9]Nuske v State of Queensland (Department of Education) [2023] QIRC 199

[10]n 2.

[11]Thorley v State of Queensland (Department of Education) [2022] QIRC 133 ('Thorley').

[12]Stacey (n 1) at [37], citing with approval Adami v Maison de Lux Limited (1924) 35 CLR 143; and R v Darling Island Stevedoring and Lighterage Co Ltd; Ex parte Halliday and Sullivan (1938) 60 CLR 601, 621-2.

[13]Ibid, [42].

[14]n 1.

[15]n 11.

[16]Ibid, [85]. See also Davenport v State of Queensland (Department of Education [2024] QIRC 206, [46].

[17]Emphasis added.

[18]Johnston & Ors v Carroll (n 7), [136].

[19]Ibid, [137]-[138].

[20]Ibid, [253]-[265].

[21]Ibid, [225].

[22]Sankey v State of Queensland (Department of Education) [2024] QIRC 197.

[23]Graf and Ors v State of Queensland (Department of Education) [2022] QIRC 451, [26].

[24]COVID-19 Vaccination Requirements for Workers in a high-risk setting Direction (No. 2), cls 10-18.

[25]Carr v State of Queensland (Department of Education) [2024] QIRC 210.

[26]See for example Mocnik  (n 8), [54]-[76].

[27]See for example Thorley (n 11).

[28]Davenport v State of Queensland (Department of Education) [2024] QIRC 206, [19]-[24]. Citations omitted.

Close

Editorial Notes

  • Published Case Name:

    Sturgess v State of Queensland (Department of Education)

  • Shortened Case Name:

    Sturgess v State of Queensland (Department of Education)

  • MNC:

    [2024] QIRC 236

  • Court:

    QIRC

  • Judge(s):

    Caddie IC

  • Date:

    26 Sep 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
Adami v Maison de Luxe Limited (1924) 35 CLR 143
1 citation
Jump To
Cite 1 - (1924) 35 CLR 143
Carr v State of Queensland (Department of Education) [2024] QIRC 210
2 citations
Jump To
Cite 1 - [2024] QIRC 210
Cite 2 - [2024] QIRC 210
Davenport v State of Queensland (Department of Education) [2024] QIRC 206
3 citations
Jump To
Cite 1 - [2024] QIRC 206
Cite 2 - [2024] QIRC 206
Cite 3 - [2024] QIRC 206
Graf v State of Queensland (Department of Education) [2022] QIRC 451
2 citations
Jump To
Cite 1 - [2022] QIRC 451
Cite 2 - [2022] QIRC 451
Johnston v Commissioner of Police [2024] QSC 2
2 citations
Jump To
Cite 1 - [2024] QSC 2
Cite 2 - [2024] QSC 2
Mocnik v State of Queensland (Queensland Health) [2023] QIRC 58
1 citation
Jump To
Cite 1 - [2023] QIRC 58
Nuske v State of Queensland (Department of Education) [2023] QIRC 199
2 citations
Jump To
Cite 1 - [2023] QIRC 199
Cite 2 - [2023] QIRC 199
O'Hearn v State of Queensland (Queensland Health) [2023] QIRC 283
2 citations
Jump To
Cite 1 - [2023] QIRC 283
Cite 2 - [2023] QIRC 283
R v Darling Island Steverdoring and Lighterage Co Ltd ex parte Halliday and Sullivan (1938) 60 CLR 601
1 citation
Jump To
Cite 1 - (1938) 60 CLR 601
Sankey v State of Queensland (Department of Education) [2024] QIRC 197
2 citations
Jump To
Cite 1 - [2024] QIRC 197
Cite 2 - [2024] QIRC 197
Stacey v State of Queensland (Department of Education) [2024] QIRC 220
2 citations
Jump To
Cite 1 - [2024] QIRC 220
Cite 2 - [2024] QIRC 220
Thorley v State of Queensland (Department of Education) [2022] QIRC 133
2 citations
Jump To
Cite 1 - [2022] QIRC 133
Cite 2 - [2022] QIRC 133
Wissmann v Nugent [2022] QIRC 58
1 citation
Jump To
Cite 1 - [2022] QIRC 58

Cases Citing

Case NameFull CitationFrequency
Allison v State of Queensland (Department of Education) [2024] QIRC 2632 citations
Dau v State of Queensland (Department of Education) [2025] QIRC 822 citations
Daunt v State of Queensland (Department of Education) [2024] QIRC 2512 citations
Nicolson v State of Queensland (Department of Education) [2025] QIRC 722 citations
Rowe v State of Queensland (Department of Education) [2024] QIRC 2482 citations
Starkey v State of Queensland (Department of Education) [2024] QIRC 2962 citations
Temple v State of Queensland (Department of Education) [2024] QIRC 2981 citation
1

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