Smith v State of Queensland (Department of Education)
[2024] QIRC 243
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- Smith v State of Queensland (Department of Education)[2024] QIRC 243
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Smith v State of Queensland (Department of Education)[2024] QIRC 243
Smith v State of Queensland (Department of Education)[2024] QIRC 243
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Smith v State of Queensland (Department of Education) [2024] QIRC 243 |
PARTIES: | Smith, Zac (Appellant) v State of Queensland (Department of Education) (Respondent) |
CASE NO: | PSA/2022/901 |
PROCEEDING: | Public Sector Appeal – Appeal against a disciplinary decision |
DELIVERED ON: | 8 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 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 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 fails to advance any unique arguments in support of his appeal – where the appellant attempts to reagitate arguments repeatedly dismissed by this Commission – appeal has no merit or substance – appeal will not be heard |
LEGISLATION AND INSTRUMENTS: | Industrial Relations Act 2016 (Qld) ss 451, 562A(3), 562B, 564 Public Health Act 2005 (Qld) s 362B Public Sector Act 2022 (Qld) ss 131, 133, 289, 324 Public Service Act 2008 (Qld) (repealed) ss 187, 188 COVID-19 Vaccination Requirements for Workers in a high-risk setting Direction COVID-19 Vaccination Requirements for Workers in a high-risk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: | Adami v Maison de Lux Limited (1924) 35 CLR 143 Allison v State of Queensland (Department of Education) [2022] QIRC 152 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 Brasell-Dellow & Ors v State of Queensland (Queensland Police Service) & Ors [2021] QIRC 356 Carr v State of Queensland (Department of Education) [2022] QIRC 188 Currie (Murray) v State of Queensland (Department of Education) [2022] QIRC 269 Daley v State of Queensland (Department of Education) [2023] QIRC 277 Donaldson v State of Queensland (Department of Education) [2024] QIRC 239 Gatongi v State of Queensland (Department of Education) [2024] QIRC 233 Gorry v State of Queensland (Department of Education) [2022] QIRC 196 Graf and Ors v State of Queensland (Department of Education) [2022] QIRC 451 Gundrum v State of Queensland (Queensland Health) [2022] QIRC 226 Miller v State of Queensland (Department of Education) [2022] QIRC 316 Nicholas v State of Queensland (Department of Education) [2022] QIRC 157 Parry v State of Queensland (Department of Education) [2024] QIRC 042 Prentis v State of Queensland (Department of Education) [2022] QIRC 212 R v Darling Island Stevedoring and Lighterage Co Ltd; Ex parte Halliday and Sullivan (1938) 60 CLR 601 Radanovic v State of Queensland (Department of Education) [2024] QIRC 225 Reh v State of Queensland (Department of Education) [2023] QIRC 149 Rossiter v State of Queensland (Department of Education) [2024] QIRC 025 Sankey v State of Queensland (Department of Education) [2024] QIRC 197 Smith v State of Queensland (Department of Education) [2022] QIRC 136 Stacey v State of Queensland (Department of Education) [2024] QIRC 220 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) [2023] QIRC 262 Tribe v State of Queensland (Department of Education) [2022] QIRC 203 |
Reasons for Decision
Introduction
- [1]Mr Zac Smith (‘the Appellant’) is employed by the Department of Education (‘the Department’) as a General Teacher (Experienced Senior Teacher) at Mudgeeraba State School.
- [2]In December 2021, the Chief Health Officer issued the COVID-19 Vaccination Requirements for Workers in a high-risk setting Direction, followed by a revised COVID-19 Vaccination Requirements for Workers in a high-risk setting Direction (No. 2) in February 2022. As the most senior medical officer in Queensland, the Chief Health Officer gave these directions (collectively, ‘the CHO Direction’) pursuant to s 362B of the Public Health Act 2005 (Qld),[1] in an attempt to supress the spread of COVID-19 within the community.
- [3]As the CHO Direction’s definition of ‘high-risk settings’ included “early childhood, primary and secondary education settings”,[2] its COVID-19 vaccination requirements captured many Department workers. The Director-General of the Department therefore issued Employment Direction 1/21 – COVID-19 Vaccinations in December 2021, followed by a reviewed Employment Direction 1/22 – COVID-19 Vaccinations in March 2022 (collectively, ‘the Direction’). The Direction required all Department workers whose role required any attendance in a high-risk setting to have received the prescribed number of doses of a COVID-19 vaccine by 23 January 2022.[3]
- [4]It is uncontroversial that the Appellant was an employee of the Department who was required to comply with the Direction. It is also not controversial that the Appellant chose not to comply with the Direction by not receiving any COVID-19 vaccinations, and that he did not hold an approved exemption from the Direction’s vaccination requirements.
Background
- [5]While initially suspended from duty on normal renumeration because of his noncompliance with the Direction, the Appellant was suspended without pay on 27 January 2022.
- [6]On 10 June 2022, the Appellant was advised that he may be liable to disciplinary findings on the basis of the allegation that he had contravened a direction from his employer without reasonable excuse, pursuant to s 187(1)(d) of the Public Service Act 2008 (Qld). While the Appellant was invited to show cause why disciplinary findings should not be made against him in relation to this allegation, the Appellant did not do so.
- [7]On 1 August 2022, Ms Anne Crowley (Assistant Direction-General, Human Resources) (‘the decision-maker’) advised the Appellant that she had determined the allegation to be substantiated on the balance of probabilities and was now considering taking the disciplinary action. The Appellant was invited to show cause why the proposed disciplinary action of a reduction in renumeration for a period of 20 weeks and a reprimand should not be taken, but again did not provide a response.
- [8]On 22 August 2022, the decision-maker informed the Appellant of her decision to impose the disciplinary action of a reduction in renumeration for a period of 18 weeks and a reprimand, pursuant to s 188(1) of the Public Service Act 2008 (Qld).
- [9]This disciplinary action decision is the subject of Mr Smith’s appeal, filed on 15 September 2022.
- [10]Following a lengthy adjournment of these proceedings, this matter was mentioned before Vice President O'Connor on 18 April 2024, at which the Appellant confirmed his wish to proceed with his appeal. As discussed at this mention, directions were issued on 18 April 2024 requiring the parties to file submissions addressing 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’).[4]
- [11]Following the filing of submissions by both parties in accordance with these directions, this matter was allocated to me for consideration. Pursuant to s 451(1) of the IR Act, this matter was decided on the papers.
- [12]While I have carefully considered all of the material filed in relation to this appeal, I have not endeavoured to summarise the entirety of the parties’ submissions. Instead, I have elected to refer to the parties’ key positions in my consideration below.
Jurisdiction
- [13]The Public Sector Act 2022 (Qld) (‘the PS Act’) commenced on 1 March 2023, repealing the Public Service Act 2008 (Qld) in effect both at the time of the disciplinary action decision, and when Mr Smith filed his appeal.[5]
- [14]Immediately prior to the PS Act’s commencement, Mr Smith’s appeal had not been decided. Therefore, the appeal will be heard and decided under chapter 3, part 10 of the PS Act.[6]
- [15]
- [16]I note that the appeal against the disciplinary action decision of 22 August 2022 was filed with the Industrial Registry on 15 September 2022, which is outside of the 21-day period for lodging an appeal.[9] This delay is due to the Appeal Notice not being accepted by the Registry on 12 September 2022, as the Appellant had failed to sign the Appeal Notice and had provided a copy of the decision appealed against as required. Had the Appellant correctly filed his Appeal Notice, it would have been lodged in time.
- [17]However, given the result of my consideration below, this jurisdictional issue is of little consequence and does not warrant further examination. I have instead opted to proceed on the basis that the Appeal Notice was filed within the 21-day period.
Issue for determination
- [18]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.
- [19]For clarity, I note that the Commission is ordinarily required to decide an appeal of this nature by reviewing the decision appealed against. That review is limited to a consideration of whether the decision appealed against was fair and reasonable, 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.
- [20]It is also important to clarify the scope of Mr Smith’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 the Appellant was liable for disciplinary action therefore cannot be disturbed.[11]
Consideration
- [21]In Tilley v State of Queensland (Queensland Health), Industrial Commissioner Dwyer made the pertinent observation that the Commission’s resources “must be reserved for matters of genuine controversy.”[12] As I stated in my recent decision in Donaldson v State of Queensland (Department of Education) (‘Donaldson’), 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.”[13]
- [22]Upon reviewing Mr Smith’s Appeal Notice and submissions, it is apparent that he has failed to advance any unique argument; each has in fact already been comprehensively dealt with by this Commission. Therefore, while I have addressed each submission and appeal ground of the Appellant below, it has been unnecessary to do so at length. I have also frequently relied upon my observations in my recent decisions in Donaldson and Sankey v State of Queensland (Department of Education) (‘Sankey’),[14] in which many of Mr Smith’s arguments were similarly advanced by the appellants in those matters.
Direction was not lawful or reasonable
- [23]The Appellant’s argument that the Direction was “not a lawful and reasonable direction”[15] is not a new one for the Commission’s consideration. His various reasons for advancing this argument, as outlined in the Appeal Notice, are also unoriginal.
- [24]I agree with the Respondent’s submission that the Direction has repeatedly been found to be lawful and reasonable.[16] As I observed in Sankey, “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.”[17] There are a multitude of authorities that comprehensively address the Appellant’s arguments and concerns, which have been cited in this decision’s footnotes for the Appellant’s ease of reference. There is no utility in allowing the Appellant to reagitate arguments that have been consistently found to be without merit and substance by this Commission. That is particularly so when the Appellant has made no attempt to distinguish his own submissions from similar submissions made by other appellants in proceedings before this Commission, which have been consistently rejected.[18]
- [25]It is by now well-established that the Direction was lawful and reasonable. It is also now well-established that failure to comply with a lawful and reasonable direction is a serious act of insubordination.[19] As the Direction’s lawfulness and reasonableness cannot be disputed, it is inevitable that Mr Smith would be sanctioned for failing to comply with it.
Risk of COVID-19
- [26]The Appellant’s submissions that, for example, COVID-19 “has not proven to be a significant threat to human health”, that COVID-19 was only a threat to “the elderly and the already sick and dying”, and that vaccinations do not reduce COVID-19’s transmission, are all entirely unoriginal.[20] Identically worded arguments were indeed advanced by the appellant in Sankey, in which I relevantly observed that “the Commission has repeatedly determined that vaccine hesitancy does not constitute a reasonable excuse for non-compliance with a lawful direction to be vaccinated.”[21]
Direction contravened existing legislative protections and is inconsistent with the Appellant’s employment contract
- [27]The Appellant contends that the Direction contravened existing legislative protections, including protections afforded by the Privacy Act 1988 (Cth) and the Human Rights Act 2019 (Qld).[22] Such arguments have already been considered in numerous matters before the Commission, and are yet to be found in favour of the employees that choose to advance them. As found by Vice President O'Connor in Rossiter v State of Queensland (Department of Education):[23]
[23] The Appellant was only required to provide evidence of vaccination status, and this was not inconsistent with the Privacy Act 1988 (Cth) or the Information Privacy Act 2009 (Qld). In addition, the Appellant’s human rights were considered as the Respondent had a public interest in ensuring employees complied with lawful and reasonable directions. As determined in Mocnik and others the Commission has repeatedly found vaccination directives are not inconsistent with the Human Rights Act 2019.
- [28]The Appellant further contends that the Department failed to sufficiently consult him, or to “update [his] original teaching employment agreement and/or development of an annexure mutually signed by both parties to include vaccinations as a mandatory requirement”.[24]
- [29]The Appellant’s argument in relation to his employment contract has also already been comprehensively addressed by this Commission. In Gundrum v State of Queensland (Queensland Health), Industrial Commissioner Dwyer succinctly addressed submissions of a similar nature:[25]
[42] [The appellant] also argues that the directive is an improper or perhaps unenforceable alteration to his contract of employment. This submission is misconceived. The directive does not impose a new term into [the appellant’s] contract of employment but rather, it relies on inter alia the implied contractual term requiring him to act in good faith. As an employee of [the department], [the appellant] has, at all times, an obligation to comply with lawful and reasonable directions from his employer.
…
[44] The directive is not an amendment to his contract, but rather a lawful and reasonable direction given to [the appellant] in the course of his employment with which he is obliged to comply or otherwise be subject to consequences.
(Emphasis added)
- [30]Regarding the Appellant’s submissions on the lack of a consultative process, I refer the Appellant to my observations in Sankey on this issue, as below:[26]
[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” …
- [31]These submissions are all entirely unmeritorious, and do not warrant further consideration.
Department’s misinterpretation of CHO Direction
- [32]The Appellant submitted, in short, that the Department has misinterpreted relevant public health directives, and in doing so has created “an alternative definition of high-risk settings” upon which the disciplinary action decision is based.[27] This submission is poorly articulated, and perplexing. The CHO Direction clearly defines ‘high-risk settings’ as including:[28]
early childhood, primary and secondary educational settings including:
- –schools and outdoor education facilities
- –other education facilities, including TAFE, that are co-located with a school
- –outside school hours care and vacation care
- –kindergartens, registered and licensed early childhood settings and family daycare providers
- [33]In the Direction, the Department adopts a definition of ‘high-risk settings’ identical to the above extract.[29] This is unsurprising given that the Department implemented the Direction to ensure that they complied with the CHO Direction as required.
- [34]As a teacher based at Mudgeeraba State School, Mr Smith is a Department worker to whom the CHO Direction, and therefore the Direction, plainly applies. The definition of ‘high-risk setting’ is so clear in its application to Mr Smith’s employment, that I will not be considering this entirely misconceived submission further.
Department did not consider alternate arrangements
- [35]The Appellant’s submission that the Department’s automatic “refusal to permit alternative duties” during his period of suspension “further exacerbate[d] the adverse impact of [sic] [his] personal health and wellbeing” and was a “potential breach of contractual psychosocial obligations”, evinces his misconceived understanding of the effect of the Direction, and the Department’s own obligations. As I observed in Sankey in relation to a similar argument:[30]
[30] … 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’) …
[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. 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. 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.
(emphasis added)
- [36]The Department was not able to apply the CHO Direction, and the vaccination requirements, in a laissez-faire manner; they were required to prevent all unvaccinated workers from unlawfully entering, or working at, any high-risk settings.
- [37]Even where alternative working arrangements could have otherwise been accommodated by the Department, I rely on my observations in Donaldson:[31]
[25] With respect to the Appellant’s submission that she was willing and able to work in isolated areas or from home, 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.” I adopt the below finding of Industrial Commissioner McLennan in Brailey v State of Queensland (Department of Education):
- [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.” It is by now well-established that the Direction was lawful and reasonable. 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.
[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.
Disciplinary action is excessive
- [38]The Appellant’s submission that the severity of the disciplinary action imposed “does not align with any alleged infractions or shortcomings on [his] part and represents a clear deviation from established norms and precedents within the realm of industrial relations”, is manifestly untrue.[32] This submission serves only to demonstrate that the Appellant’s understanding of the nature of an employment relationship, is fundamentally flawed.
- [39]If there is any deviation from so-called “norms and precedents within the realm of industrial relations” evident in the disciplinary action decision, it is that the Department has decided to impose a penalty of significantly lesser severity than what this form of misconduct would typically attract, namely the termination of employment. In that respect, Industrial Commissioner Dwyer usefully observed the following in his recent decision of Stacey v State of Queensland (Department of Education):[33]
[36] At the very essence of every employment relationship is the fundamental notion of subordination. An employer must have the ability (within lawful and reasonable bounds) to direct employees in the manner they consider best or necessary for the overall functioning of the enterprise they own or manage. Moreover, an employer must be able to feel confident an employee will comply with those directions. It follows that insubordination is a most grievous injury to that relationship in that, it undermines the trust an employer must be able to have in an employee to perform their duties as directed.
[37] It is well established that a failure to follow a lawful and reasonable instruction is serious misconduct within the ordinary meaning of that phrase. While a comprehensive and robust system of recognising and protecting the rights of employees is essential to maintain healthy industrial relations, it should not obscure the fundamental feature of subordination in the relationship between employer and employee. Employees enjoy many rights, but their obligations to their employer are equally important to the employment relationship.
[38] An employee who fails to comply with a lawful and reasonable direction must expect that a consequence of that choice will, in all likelihood, be the termination of their employment. There is a lengthy history of authority making this proposition indisputable. These authorities establish that dismissal is justified when an employee wilfully or deliberately disregards an important condition of the contract of employment, or disobeys a lawful instruction, or engages in acts of insubordination which go to the heart of the employment relationship.
(emphasis added)
- [40]In my recent decision of Gatongi v State of Queensland (Department of Education), I found that “in circumstances where [the appellant] clearly disobeyed a lawful and reasonable direction, and continues to assert that [them] doing so was justified, a reduction in renumeration and a reprimand is not heavy-handed, but rather is an entirely lenient consequence that has resulted in [the appellant] ultimately avoiding termination of employment.”[34] These findings are equally applicable to Mr Smith’s own appeal; despite his serious misconduct, he still “has the good fortune to enjoy continued employment with the Department in circumstances where there was compelling justification for dismissal.”[35]
- [41]I note that the Appellant’s attempt to conflate the consequences of his period of suspension without pay, with the disciplinary action subsequently imposed, is misconceived. While Mr Smith appears to characterise the hardship arising from his suspension as hardship deliberated imposed on him by the Department, it was in fact hardship that Mr Smith entirely imposed on himself and his family through his choice to not be vaccinated against COVID-19. As I noted in Donaldson:[36]
[29] As a result of the vaccination directions of the Chief Health Officer, 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 [the appellant] from entering their place of work. While [the appellant] was free to not comply with the requirement to be vaccinated against COVID-19, the consequences of having made that choice are [his] responsibility alone …
- [42]Lastly, I note that that suspending an employee without pay is an administrative action, not a disciplinary action. Any argument advanced by the Appellant that he has already been disciplined for his misconduct, and that therefore the disciplinary action imposed is excessive, is therefore misconceived.
Conclusion
- [43]Mr Smith is entitled to his 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.” He is also entitled to act in accordance with those views. He is not, however, free to insist that those views are accepted by his employer, nor is he free to reagitate arguments before this Commission that have been consistently found to be entirely lacking in merit or substance. Further public resources being expended to entertain the Appellant’s display of recalcitrance cannot be in the public interest; those limited resources should be diverted to determine the matters of those individuals advancing matters of genuine controversy, who do not have the benefit of a large body of decisions, all publicly available, addressing circumstances comparable to their own.
- [44]Mr Smith’s appeal is founded on grounds that are the same, or similar to, grounds already extensively dealt with and rejected by this Commission. His attempts to reagitate arguments to be unmeritorious should not be entertained further.
Order
- [45]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] I note that this section of the Public Health Act 2005 (Qld), located within Part 7A entitled ‘Particular powers for COVID-19 emergency’, has since expired following the end of the declared COVID-19 public health emergency pursuant to s 324 of the Act.
[2] See the definition of ‘high-risk settings’ in Schedule 2 of both COVID-19 Vaccination Requirements for Workers in a high-risk setting Direction, and COVID-19 Vaccination Requirements for Workers in a high-risk setting Direction (No. 2).
[3] Employment Direction 1/22 – COVID-19 Vaccinations, cl 5.
[4] Directions Order, issued 18 April 2024; Further Directions Order, issued 31 May 2024.
[5] Public Sector Act 2022 (Qld) s 289.
[6] Ibid, s 324.
[7] Ibid, s 131(1)(c).
[8] Ibid, s 133(c).
[9] Industrial Relations Act 2016 (Qld) s 564.
[10] Industrial Relations Act 2016 (Qld) s 562B.
[11] See Bailey v State of Queensland (Department of Education) [2024] QIRC 218 [29]-[31]; Stacey v State of Queensland (Department of Education) [2024] QIRC 220 [16]-[18].
[12] [2023] QIRC 262 [33].
[13] [2024] QIRC 239 [18].
[14] [2024] QIRC 197.
[15] Appeal Notice, filed 15 September 2022, 4.
[16] Respondent’s submissions, filed 17 June 2024, [12], citing decisions such as Smith v State of Queensland (Department of Education) [2022] QIRC 136; Allison v State of Queensland (Department of Education) [2022] QIRC 152; Nicholas v State of Queensland (Department of Education) [2022] QIRC 157; Carr v State of Queensland (Department of Education) [2022] QIRC 188; Gorry v State of Queensland (Department of Education) [2022] QIRC 196; Tribe v State of Queensland (Department of Education) [2022] QIRC 203; Prentis v State of Queensland (Department of Education) [2022] QIRC 212.
[17] [2024] QIRC 197 [29], in which I cited, by way of example, the decisions of 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; and Parry v State of Queensland (Department of Education) [2024] QIRC 042.
[18] Reh v State of Queensland (Department of Education) [2023] QIRC 149 [18], [21].
[19] See Stacey v State of Queensland (Department of Education) [2024] QIRC 220 [37], citing Adami v Maison de Lux Limited (1924) 35 CLR 143; R v Darling Island Stevedoring and Lighterage Co Ltd; Ex parte Halliday and Sullivan (1938) 60 CLR 601, 621-2.
[20] Email of Mr Z. Smith to Industrial Registry, dated 12 September 2022, [4]-[8].
[21] Sankey v State of Queensland (Department of Education) [2024] QIRC 197 [52].
[22] Email of Mr Z. Smith to Industrial Registry, dated 12 September 2022, [10].
[23] [2024] QIRC 025, citing Mocnik & Others v State of Queensland (Queensland Health) [2023] QIRC 058.
[24] Appellant’s submissions, filed 10 May 2024, [3].
[25] [2022] QIRC 226 [42]-[44]; see also Brasell-Dellow & Ors v State of Queensland (Queensland Police Service) & Ors [2021] QIRC 356 [65].
[26] [2024] QIRC 197 [42].
[27] Appellant’s submissions, filed 10 May 2024, [3].
[28] See the definition of ‘high-risk settings’ in Schedule 2 of both COVID-19 Vaccination Requirements for Workers in a high-risk setting Direction, and COVID-19 Vaccination Requirements for Workers in a high-risk setting Direction (No. 2).
[29] See the definition of ‘high-risk setting’ on page 4 of both Employment Direction 1/21 – COVID-19 Vaccinations, and Employment Direction 1/22 – COVID-19 Vaccinations.
[30] Sankey v State of Queensland (Department of Education) [2024] QIRC 197 [30]-[31].
[31] Donaldson v State of Queensland (Department of Education) [2024] QIRC 239 [25]-[27]; citing Brailey v State of Queensland (Department of Education) [2022] QIRC 401 [48]-[49].
[32] Appellant’s submissions, filed 10 May 2024, [2].
[33] [2024] QIRC 220 [36]-[38].
[34] [2024] QIRC 233 [35].
[35] Radanovic v State of Queensland (Department of Education) [2024] QIRC 225 [41]; see also Reh v State of Queensland (Department of Education) [2023] QIRC 149 [23].
[36] Donaldson v State of Queensland (Department of Education) [2024] QIRC 239 [29].