Donaldson v State of Queensland (Department of Education)
[2024] QIRC 239
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- Donaldson v State of Queensland (Department of Education)[2024] QIRC 239
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Donaldson v State of Queensland (Department of Education)[2024] QIRC 239
Donaldson v State of Queensland (Department of Education)[2024] QIRC 239
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Donaldson v State of Queensland (Department of Education) [2024] QIRC 239 |
PARTIES: | Donaldson, Kaylene (Appellant) v State of Queensland (Department of Education) (Respondent) |
CASE NO: | PSA/2022/867 |
PROCEEDING: | Public Sector Appeal – Appeal against a disciplinary decision |
DELIVERED ON: | 4 October 2024 |
MEMBER: | Gazenbeek IC |
HEARD AT: | On the papers |
ORDER: | 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 – consideration under section 562A(3) of the Industrial Relations Act 2016 (Qld) whether to decline to hear appeal – where the appellant is employed by the respondent as an administrative officer – where the appellant failed to comply with the vaccination requirements in Employment Direction 1/21 – COVID-19 Vaccinations and Employment Direction 1/22 – COVID-19 Vaccinations – where the appellant did not hold an approved exemption from the requirement to be vaccinated against COVID-19 – where the appellant was the subject of a disciplinary action decision to impose a reduction in renumeration and a reprimand – where the appellant believes the disciplinary action to be punitive and excessive – where the appellant fails to advance any unique arguments in support of her appeal – where appellant attempts to reagitate arguments repeatedly dismissed by this Commission – appeal will not be heard |
LEGISLATION AND INSTRUMENTS: | Industrial Relations Act 2016 (Qld) ss 451, 562A(3), 562B, 564 Public Sector Act 2022 (Qld) ss 131, 133, 289, 324 Public Service Act 2008 (Qld) (repealed) s 188 Employment Direction 1/21 – COVID-19 Vaccinations Employment Direction 1/22 – COVID-19 Vaccinations |
CASES: | Bailey v State of Queensland (Department of Education) [2024] QIRC 218 Bakhash v State of Queensland (Department of Education) [2022] QIRC 362 Bowcock v State of Queensland (Department of Education) [2024] QIRC 028 Brailey v State of Queensland (Department of Education) [2022] QIRC 401 Carr v State of Queensland (Department of Education) [2024] QIRC 210 Davenport v State of Queensland (Department of Education) [2024] QIRC 206 Gatongi v State of Queensland (Department of Education) [2024] QIRC 233 Gundrum v State of Queensland (Queensland Health) [2022] QIRC 226 Johnston & Ors v Carroll (Commissioner of the Queensland Police Service) & Anor; Witthahn & Ors v Wakefield (Chief Executive of the Hospital and Health Services and Director General of Queensland Health); Sutton & Ors v Carroll (Commissioner of the Queensland Police Service) [2024] QSC 2 Nuske v State of Queensland (Department of Education) [2023] QIRC 199 Radanovic v State of Queensland (Department of Education) [2024] QIRC 225 Sankey v State of Queensland (Department of Education) [2024] QIRC 197 Stacey v State of Queensland (Department of Education) [2024] QIRC 220 Tadeo v State of Queensland (Department of Education) [2022] QIRC 177 Tilley v State of Queensland (Queensland Health) [2023] QIRC 262 Winter v State of Queensland (Department of Education) [2022] QIRC 350 |
Reasons for Decision
Background
- [1]Ms Kaylene Donaldson (‘the Appellant’) is employed by the Department of Education (‘the Department’) as an Administrative Officer at Earnshaw State College.
- [2]In December 2021, the Director-General of the Department issued Employment Direction 1/21 – COVID-19 Vaccinations, and a revised Employment Direction 1/22 – COVID-19 Vaccinations in March 2022 (collectively, ‘the Direction’). The Direction applied to all Department workers who attend a ‘high-risk setting’ as part of their role, the definition of which included “primary and secondary educational settings”.[1] Such Department workers were required to have received the prescribed number of doses of a COVID-19 vaccine by 23 January 2022.[2]
- [3]It is not controversial that Ms Donaldson was an employee of the Department who was required to comply with the Direction. It is also not in dispute that she chose not to comply with the Direction by not receiving any COVID-19 vaccinations.
- [4]On 1 August 2022, following a formal show cause process, Ms Donaldson was found to be liable for disciplinary action, on the grounds that she had contravened a lawful and reasonable direction without a reasonable excuse. On the basis of that finding, Ms Donaldson was advised that the decision-maker was contemplating imposing disciplinary action of a reduction in renumeration for a period of 20 weeks and a reprimand, and was invited to show cause why this penalty should not be imposed.
- [5]On 22 August 2022, following receipt and consideration of Ms Donaldson’s response, the Appellant was informed of the decision to impose, pursuant to section 188(1) of the Public Service Act 2008 (Qld), the disciplinary action of a reduction in renumeration for a period of 18 weeks and a reprimand. This disciplinary action decision dated 22 August 2022 is the subject of Ms Donaldson’s appeal, filed on 12 September 2022.
- [6]Ms Donaldson’s appeal was listed for a mention before Vice President O'Connor on 18 April 2024. After confirming that she wished to continue with her matter at this mention, His Honour advised Ms Donaldson that a directions order would be issued imminently to progress her matter.
- [7]A Directions Order was subsequently issued 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’).
- [8]Submissions were filed by both parties in accordance with these directions, and the matter was subsequently allocated to me for consideration. Pursuant to s 451 of the IR Act, this matter has been decided on the papers.
Preliminary matters
Jurisdiction
- [9]The Public Sector Act 2022 (Qld) (‘the PS Act’) commenced on 1 March 2023, which repealed the previous Public Service Act 2008 (Qld)[3] in effect both at the time of the disciplinary action decision, and when Ms Donaldson filed her appeal.
- [10]Immediately prior to the PS Act’s commencement, Ms Donaldson’s appeal had not been decided. Therefore, the appeal will be heard and decided under chapter 3, part 10 of the PS Act.[4] I am satisfied that the disciplinary action decision is one that may be appealed against,[5] that the Appellant is entitled to do so,[6] and that the appeal was lodged within the required timeframe.[7]
Issue for my determination
- [11]The issue for my present determination 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. That section provides the following:
562A Commission may decide not to hear particular public service appeals
…
(3)The commission may decide it will not hear a public service appeal against a decision if –
(a) 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
(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 –
(i) is frivolous or vexatious; or
(ii) is misconceived or lacks substance; or
(iii) should not be heard for another compelling reason.
- [12]For clarity, I note that the Commission is ordinarily required to decide an appeal of this nature by reviewing the decision appealed against.[8] That review is limited to a consideration of whether the decision appealed against was fair and reasonable,[9] having “regard to the evidence available to the decision-maker when the decision was made.”[10] It therefore does not involve a re-hearing of the matter on the merits, and findings that were reasonably open to the decision-maker on the relevant material before them should not be expected to be disturbed on appeal.
- [13]It is also important to clarify the scope of Ms Donaldson’s appeal, which is against the Department’s decision of 22 August 2022 to impose disciplinary action. The Commission does not have jurisdiction in this matter to consider decisions made in the preceding stages of the disciplinary process. The Department’s earlier decision of 1 August 2022 that Ms Donaldson was liable for disciplinary action therefore cannot be disturbed.[11]
Appeal grounds
- [14]The Appellant’s reasons for appealing the disciplinary action decision, as outlined in Schedule I to the Appeal Notice filed on 12 September 2022, can be summarised as being that:
- she does not believe that the decision maker “paid consideration at all, or to the full extent of” her show cause response when making the disciplinary action decision;
- the decision-maker did not provide her with a “tailored response that attends to the unique matters … raised in [her] response to proposed disciplinary action”, which has been “akin to not having the opportunity to respond at all”; and
- it is “rather peculiar” that the disciplinary action decision was delivered at the same time as decisions affecting other Department staff, all of whom received identical outcomes via emails sent as part of an “automated response sending program”.
Submissions
Appellant’s submissions
- [15]In submissions filed on 10 May 2024, the Appellant further contended, in summary, that:
- the Department failed to sufficiently consult her before the Direction was issued, and therefore failed to “comply with section 47, 48 and 49 of the Work Safety Act 2011 (sic)”;
- she was not provided with a risk assessment after three requests;
- she encountered significant barriers when seeking information from the Department to make an informed decision about the vaccine;
- the Department “failed to fulfill its obligation to provide all necessary information for informed consent”, without which it was “impossible for [her] to make an informed decision about receiving the vaccine”;
- the Department failed to accommodate alternative work arrangements, demonstrating “a lack of flexibility and consideration for employee well-being”;
- the Department’s Direction has “infringed upon [her] human rights … which safeguards against cruel treatment and requires informed consent for medical procedures”;
- the implementation of the Direction has been inconsistent, as “parents and caregivers” were able to “freely engage with school activities without vaccination requirements and without consequences”, despite the Direction implying that “unvaccinated individuals posed a threat to the safety of staff, students and visitors”;
- the decision to suspend her without pay has had “severe repercussions on [her] health, family, and career trajectory”; and
- the disciplinary action imposed is excessive, “unwarranted and disproportionate”.
Respondent’s submissions
- [16]In submissions filed on 17 June 2024, the Respondent contended that:
- Ms Donaldson’s reasons for appeal have all been “extensively considered and determined in matters before the Commission”, with none of these matters being found in favour of employees or former employees;
- the Direction has repeatedly been found to be lawful and reasonable;
- Ms Donaldson did not have a reasonable excuse for her failure to comply with the Direction;
- the Commission has repeatedly confirmed the seriousness of an employee failing to comply with a reasonable direction of their employer;
- there was no obligation under the Work Health and Safety Act 2011 (Cth) for individual consultation, noting that employees were communicated with at various points prior to the Direction being issued;
- it was not reasonable for the Appellant to expect her role to be “accommodated remotely on a full-time basis in the long term as an alternative for complying with the Direction”;
- it was the Appellant’s noncompliance that “made her unable to attend the workplace and was subsequently the reason for her suspension and discipline”;
- the Commission has consistently found vaccine directives to not be inconsistent with the Human Rights Act 2019 (Qld);
- the disciplinary action decision was procedurally fair; and
- Ms Donaldson’s appeal is not sufficiently unique to warrant expending any further resources of the Commission, and the Commission should therefore exercise its discretion to not hear the appeal.
Consideration
- [17]Throughout my consideration below, I have frequently relied upon observations made in my recent decision of Sankey v State of Queensland (Department of Education) (‘Sankey’).[12] This is not due to a failure on my part to consider Ms Donaldson’s appeal on its own merits (or lack thereof), but rather because her appeal raises no unique matters. My reliance on my findings in Sankey is indeed inevitable given that, excluding a short summary of the disciplinary process faced by Ms Donaldson, Schedule I to Ms Donaldson’s Appeal Notice is identical to Schedule I to the Appeal Notice filed by the appellant in Sankey.[13]
- [18]I agree with Industrial Commissioner Dwyer’s observation in Tilley v State of Queensland (Queensland Health) that the Commission’s resources “must be reserved for matters of genuine controversy.”[14] Those resources must not be made available to, or repeatedly expended on, individuals who insist on re-agitating arguments that have been already exhaustively dealt with, and on each occasion deemed unmeritorious, by the Commission. Therefore, while I have addressed each submission of the Appellant below, I have not re-examined at length those advanced by the Appellant that have been exhaustively dealt with by this Commission in previous decisions.
Procedural fairness
- [19]The Appellant argues that the decision-maker failed to consider any of the information within her show cause response when making the disciplinary action decision, which is “akin to not having the opportunity to respond at all”.[15] An identical submission was made by the appellant in Sankey (whose own circumstances are similar to those of Ms Donaldson), and I adopt my conclusions in that decision with respect to Ms Donaldson’s submission:[16]
[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, which this Commission has repeatedly determined does not constitute a reasonable excuse for non-compliance with a lawful direction to be vaccinated. 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. 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.
- [20]Further, Ms Donaldson’s concern about the use of an ‘automated response sending program’ by the Department has been extensively addressed by the Commission, and this issue does not need to be reagitated. It is sufficient merely to reproduce my observations in Sankey regarding this ground of appeal, as below:[17]
[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”. 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”.
[46] This argument has already been thoroughly addressed by Vice President O'Connor in Nuske v State of Queensland (Department of Education). 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.
Informed consent
- [21]The Appellant’s submission that the Department had an obligation, in accordance with Australian healthcare standards, to provide “all necessary information” about the COVID-19 vaccination to ensure her “informed consent” to the Direction, is entirely misconceived.[18] As noted by the decision-maker in their correspondence of 1 August 2022, it was open to Ms Donaldson to obtain advice in relation to her concerns regarding vaccinations by contacting her local general practitioner or medical specialist, who “are best placed to advise [her] on the most appropriate vaccination pathway for [her] specific circumstances.”[19] However, it is by now “well-established that the Department is not required to allay the Appellant’s concerns about receiving a COVID-19 vaccine”, nor is the Department required to accept or entertain the Appellant’s views on the safety or effectiveness of the COVID-19 vaccine.[20]
Consultation obligations and risk assessments
- [22]Ms Donaldson’s submissions regarding the Department’s failure to comply with the Work Health and Safety Act 2011 (Cth) or to provide her with a risk assessment, have also been extensively addressed by the Commission. As I observed in Sankey:[21]
[42] … 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.” …
…
[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.” 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.”
Violation of human rights
- [23]The Commission has also found in numerous decisions that vaccine directives are not inconsistent with the Human Rights Act 2019 (Qld).[22] While the Appellant eludes to the decision of Johnston & Ors v Carroll (Commissioner of the Queensland Police Service) & Anor; Witthahn & Ors v Wakefield (Chief Executive of the Hospital and Health Services and Director General of Queensland Health); Sutton & Ors v Carroll (Commissioner of the Queensland Police Service) in her submissions on this issue, this decision is of no relevance to her appeal.[23] In this regard, I respectfully adopt the conclusions of Industrial Commissioner Dwyer in Stacey v State of Queensland (Department of Education) (‘Stacey’):[24]
[56] … it ought be noted that [the appellant] misunderstands the effect of the decision in Johnston. The decision that the directives in that matter were unlawful was founded on what amounts to a quintessential technicality. In essence, those directives were inter alia unlawful only within the meaning of that term as prescribed by s 58 of the Human Rights Act 2019 (Qld). Had either of the relevant decision makers in that matter complied with the procedural or legal prerequisites, the challenge to the directives in those matters would have likely failed.
[57] But more importantly, the findings in Johnston relate to entirely different directives. The flaws that rendered them unlawful do not affect the Directive that was applicable to [the appellant].
- [24]I also direct Ms Donaldson to my previous observations on the irrelevance of the findings in Johnston to appeals of this nature concerning the Department’s Direction:[25]
[29] … 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. That [the appellant] 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 [the appellant’s] refusal to acknowledge the lack of merit this particular argument possesses. This selective approach is of little benefit to [the appellant’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, undermining [the appellant’s] own arguments to the contrary.
Availability of alternative working arrangements
- [25]With respect to the Appellant’s submission that she was willing and able to work in isolated areas or from home,[26] I agree with the Respondent’s submission that the Appellant cannot expect the Department to entertain such attempts to “circumvent adherence to the Direction”, and that such arrangements are “not a suitable alternative for declining to adhere to a lawful and reasonable direction.”[27] I adopt the below finding of Industrial Commissioner McLennan in Brailey v State of Queensland (Department of Education):[28]
[48] … although the Appellant could perform her duties from home, her usual workplace was the school. Although the Appellant may perform some duties from home, such arrangements could only reasonably be accommodated for short periods of time whereas during the period of suspension without renumeration, it was the Appellant’s election not to comply with the Direction that had resulted in her inability to attend the workplace.
[49] Although working remotely has been accommodated for many employees in the past due to lockdown periods etc., it is not reasonable for the Appellant to expect her role could be accommodated remotely on a full-time basis in the long term as an alternative to complying with the Direction …
- [26]By advancing this argument, the Appellant fails to recognise that her non-compliance with the Direction to be vaccinated against COVID-19, is “merely a particular of [her] misconduct”, and that the misconduct itself was “the failure to comply with a lawful and reasonable direction.”[29] It is by now well-established that the Direction was lawful and reasonable.[30] It is also well-established that an employee’s failure to comply with a lawful and reasonable direction of their employer is serious misconduct which will, in all likelihood, attract a penalty of termination of employment.[31]
- [27]In choosing to flagrantly disobey her employer’s lawful and reasonable direction, and in continuing to assert that this misconduct was justified, the Appellant has significantly undermined her employer’s ability to trust that she will perform her duties as directed or that she will recognise her obligations to her employer. Such a “grievous injury” to the employment relationship could not have been rectified merely by accommodating a flexible work arrangement, which would only result in the Department entertaining the Appellant’s attempts to avoid adhering to the Direction.[32]
Excessive punishment
- [28]The Appellant has submitted that the Department’s decision to suspend her without pay has resulted in “severe repercussions on [her] health, family, and career trajectory”, with the “financial strain, loss of entitlements, and isolation from colleagues” significantly impacting her mental health and professional growth.[33] Ms Donaldson appears to characterise these consequences as hardship deliberately imposed on her by the Department; in her show cause response to the proposed disciplinary action, she submitted that she had “already been financially penalised” and “disciplined” for her conduct.[34]
- [29]However, the hardship arising from Ms Donaldson’s suspension was hardship that she entirely imposed on herself and her family through her choice to not be vaccinated against COVID-19. As a result of the vaccination directions of the Chief Health Officer,[35] unvaccinated workers could not lawfully enter, or work at, schools. The Department was conversely required to take all reasonable steps to prevent unvaccinated workers like Ms Donaldson from entering their place of work.[36] While Ms Donaldson was free to not comply with the requirement to be vaccinated against COVID-19, the consequences of having made that choice are her responsibility alone. As put by the Respondent in their submissions, “it was Ms Donaldson’s decision not to be vaccinated which made her unavailable for work and, as a consequence, she had no entitlement to her salary.”[37]
- [30]For completeness, I note that that suspending an employee without pay is an administrative action, not a disciplinary action. Any argument advanced by the Appellant that she has already been disciplined for her misconduct, is therefore misconceived.
- [31]The disciplinary action actually imposed by the Department, by contrast, is not a penalty for being unvaccinated; it is imposed because Ms Donaldson failed to comply with a lawful and reasonable direction of her employer.[38] Given that Ms Donaldson clearly disobeyed a lawful and reasonable direction, and continues to assert that her doing so was justified, the disciplinary action imposed is not punitive or excessive. Rather, it is an entirely lenient consequence that has resulted in Ms Donaldson remaining employed with the Department despite her serious misconduct,[39] and despite it being open to the Department to impose a heavier penalty.[40]
- [32]In this respect, I respectfully adopt the findings of Industrial Commissioner Dwyer in his recent decision of Stacey, in which the appellant advanced a similar argument that a reduction of renumeration and a reprimand was excessive:[41]
[41] The purpose of the Directive was, first and foremost, the protection of the health and safety of staff and pupils, including those at the school where Mr Stacey taught. His noncompliance had the potential to place those persons at risk of infection with a highly contagious and (in some cases) deadly virus. It is difficult to imagine a greater aggravating factor for an act of misconduct than one where the health and safety of school aged children is disregarded. It is therefore nothing short of astonishing that Mr Stacey remains employed by the Department.
[42] Despite Mr Stacey’s subjective views about the penalty, an 18-week reduction in wages and a reprimand is objectively very generous in these circumstances. To the extent it is necessary to speculate as to why the Department imposed such a disproportionate penalty, the obvious explanation is that that the collective disobedience of numerous other teachers in similar circumstances most likely caused the Department to refrain from terminating them, lest their absence through dismissal give rise to shortfalls in the delivery of essential teaching services, especially in regional areas. While this unique situation has worked to Mr Stacey’s benefit, it in no way detracts from the serious nature of his misconduct.
[43] On all the facts available, I have no difficulty concluding there was a valid and compelling reason to terminate Mr Stacey’s employment. An employee who, without good reason, wilfully and deliberately disregards a lawful and reasonable direction given for the safety of others represents a serious and continuing risk of further serious disobedience and with that, a risk to the health and safety of others (including children). Given his continued defiance and lack of insight into his obligation to follow lawful and reasonable directions, there is no predicting what directions Mr Stacey might choose to disregard in the future.
…
[73] Mr Stacey can consider himself fortunate. Fortunate in that he has escaped a proper penalty for his misconduct. Fortunate in that he can continue with his career. And now, fortunate that he was given the valuable time of the Commission to prepare these extensive reasons at the expense of other litigants awaiting their opportunity to have their genuine controversies determined.
[74] To the extent Mr Stacey’s employment is rendered more tenuous by virtue of the reprimand now on his record, that is a small price to pay for an employee who has demonstrated no insight and no remorse for wilfully refusing to comply with a lawful and reasonable direction.
Conclusion
- [33]In only raising matters that are misconceived, irrelevant, or that have been previously dealt with and rejected by this Commission, Ms Donaldson has failed to demonstrate that she has an arguable case. It is not in the public interest for public resources to be further expended on dealing with an appeal that is based on the same “spurious arguments” that innumerable (publicly available) decisions of this Commission have dismissed, and are “doomed to fail”.[42]
- [34]I consider the lack of merit or substance in the arguments advanced by Ms Donaldson to be a compelling reason to exercise my discretion to decline to hear her appeal, pursuant to s 562A(3) of the IR Act. I have therefore determined not to hear this matter, and order accordingly.
Order
- [35]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 setting’ on page 4 of Employment Direction 1/22 – COVID-19 Vaccinations, effective 10 March 2022.
[2] Ibid, cl 5.
[3] Public Sector Act 2022 (Qld) s 289.
[4] Ibid, s 324.
[5] Ibid, s 131(1)(c).
[6] Ibid, s 133(c).
[7] Industrial Relations Act 2016 (Qld) s 564.
[8] Ibid, s 562B(2).
[9] Ibid, s 562B(3).
[10] Ibid, s 562B(4)(a).
[11] See the recent decision of Industrial Commissioner Pidgeon in Bailey v State of Queensland (Department of Education) [2024] QIRC 218 [29]-[31], and of Industrial Commissioner Dwyer in Stacey v State of Queensland (Department of Education) [2024] QIRC 220 [16]-[18].
[12] [2024] QIRC 197.
[13] I further note that both Schedule I and Schedule II to Ms Donaldson’s Appeal Notice are identical to Schedules I and II to the Appeal Notices filed in the recently decided matters of Stacey v State of Queensland (Department of Education) [2024] QIRC 220 [25], and Radanovic v State of Queensland (Department of Education) [2024] QIRC 225 [36].
[14] [2023] QIRC 262 [33].
[15] Appeal Notice, filed 12 September 2022, [23].
[16] [2024] QIRC 197 [39]-[40].
[17] Sankey v State of Queensland (Department of Education) [2024] QIRC 197 [45]-[46], citing Nuske v State of Queensland (Department of Education) [2023] QIRC 199.
[18] Appellant’s submissions, filed 10 May 2024, 1.
[19] Letter of Ms A. Crowley (Assistant Director-General, Human Resources) to Ms K. Donaldson, dated 1 August 2022, 2.
[20] Sankey v State of Queensland (Department of Education) [2024] QIRC 197 [43], citing Tadeo v State of Queensland (Department of Education) [2022] QIRC 177 [47]-[49].
[21] [2024] QIRC 197 [42] and [44], citing Tadeo v State of Queensland (Department of Education) [2022] QIRC 177 [51] and Gundrum v State of Queensland (Queensland Health) [2022] QIRC 226 [38].
[22] See Bakhash v State of Queensland (Department of Education) [2022] QIRC 362 or Bowcock v State of Queensland (Department of Education) [2024] QIRC 028.
[23] [2024] QSC 2.
[24] Stacey v State of Queensland (Department of Education) [2024] QIRC 220 [56]-[57].
[25] Sankey v State of Queensland (Department of Education) [2024] QIRC 197 [29].
[26] Appellant’s submissions, filed 10 May 2024, 2.
[27] Respondent’s submissions, filed 17 June 2024, [21].
[28] [2022] QIRC 401 [48]-[49].
[29] Stacey v State of Queensland (Department of Education) [2024] QIRC 220 [53]
[30] See the numerous decisions cited at Sankey v State of Queensland (Department of Education) [2024] QIRC 197 [29].
[31] Ibid, [35]-[38].
[32] Ibid, [36].
[33] Appellant’s submissions, filed 10 May 2024, 2.
[34] Letter of Ms K. Donaldson to Covid Compliance Team, dated 8 August 2022, 2.
[35] COVID-19 Vaccination Requirements for Workers in a high-risk setting Direction, issued 11 December 2021; COVID-19 Vaccination Requirements for Workers in a high-risk setting Direction (No. 2), issued 4 February 2022.
[36] See Winter v State of Queensland (Department of Education) [2022] QIRC 350. I also note that the Appellant’s submission regarding unvaccinated parents and caregivers being able to engage with school activities in person, is entirely irrelevant to this appeal for this reason.
[37] Respondent’s submissions, filed 17 June 2024, [5]; see also Davenport v State of Queensland (Department of Education) [2024] QIRC 206 [46].
[38] Stacey v State of Queensland (Department of Education) [2024] QIRC 220 [50].
[39] [2024] QIRC 233 [35].
[40] See Carr v State of Queensland (Department of Education) [2024] QIRC 210 [53], and Radanovic v State of Queensland (Department of Education) [2024] QIRC 225 [41].
[41] Stacey v State of Queensland (Department of Education) [2024] QIRC 220 [41]-[43], [73]-[74].
[42] Stacey v State of Queensland (Department of Education) [2024] QIRC 220 [69].