Daunt v State of Queensland (Department of Education)
[2024] QIRC 251
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- Daunt v State of Queensland (Department of Education)[2024] QIRC 251
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Daunt v State of Queensland (Department of Education)[2024] QIRC 251
Daunt v State of Queensland (Department of Education)[2024] QIRC 251
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Daunt v State of Queensland (Department of Education) [2024] QIRC 251 |
PARTIES: | Daunt, Darren (Appellant) v State of Queensland (Department of Education) (Respondent) |
CASE NO: | PSA/2022/930 |
PROCEEDING: | Public Sector Appeal – Appeal against a disciplinary decision |
DELIVERED ON: | 17 October 2024 |
MEMBER: | Gazenbeek IC |
HEARD AT: | On the papers |
ORDERS: | 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 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 attempts to reagitate arguments already found to be unmeritorious or lacking in substance by the Commission – where arguments advanced by the appellant are irrelevant to an appeal against a disciplinary action decision – appeal misconceived – appeal will not be heard |
LEGISLATION AND INSTRUMENTS: | Human Rights Act 2019 (Qld) s 17 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2016 (Qld) ss 451, 562A(3), 562B, 564 Public Sector Act 2022 (Qld) ss 131, 133, 289, 324 Public Service Act 2008 (Qld) (repealed) s 188 Therapeutic Goods Act 1989 (Cth) Employment Direction 1/21 – COVID-19 Vaccinations Employment Direction 1/22 – COVID-19 Vaccinations Therapeutic Goods (Poisons Standard – October 2024) Instrument 2024 Universal Declaration of Human Rights, GA Res 217A (III), UN GAOR, UN Doc A/810 (10 December 1948) |
CASES: | Bailey v State of Queensland (Department of Education) [2024] QIRC 218 Davenport v State of Queensland (Department of Education) [2024] QIRC 206 Donaldson v State of Queensland (Department of Education) [2024] QIRC 239 Gatongi v State of Queensland (Department of Education) [2024] QIRC 233 Graf and Ors v State of Queensland (Department of Education [2022] QIRC 451 Gundrum v State of Queensland (Queensland Health) [2022] QIRC 226 Jackson v Tyson Foods, Inc (WD Ark, No. 5:23-CV-5102, 27 November 2023) Johnson v Brown, 567 F. Supp. 3d 1230 (D Or, 2021) 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 Radanovic v State of Queensland (Department of Education) [2024] QIRC 225 Rae v State of Queensland (Queensland Health) [2022] QIRC 160 Sankey v State of Queensland (Department of Education) [2024] QIRC 197 Smith v State of Queensland (Department of Education) [2024] QIRC 243 Stacey v State of Queensland (Department of Education) [2024] QIRC 220 Sturgess v State of Queensland (Department of Education) [2024] QIRC 236 |
Reasons for Decision
Background
- [1]Mr Darren Daunt (‘the Appellant’) is employed by the Department of Education (‘the Department’) as a Manual Arts Teacher at Narangba Valley State High School.
- [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 Mr Daunt was an employee of the Department who was required to comply with the Direction. It is also not in dispute that Mr Daunt chose not to comply with the Direction by not receiving any COVID-19 vaccinations.
- [4]While initially suspended from duty on normal renumeration, Mr Daunt was suspended without pay from 11 February 2022 to 24 June 2022 as a result of his non-compliance with the Direction.[3]
- [5]On 1 August 2022, following a formal show cause process, Ms Anne Crowley (Assistant Director-General, Human Resources) (‘the decision-maker’) advised Mr Daunt that he was liable for disciplinary action, on the grounds that he had contravened a lawful and reasonable direction without a reasonable excuse. On the basis of that finding, Mr Daunt was advised that the decision-maker was considering imposing the 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.
- [6]On 22 August 2022, following receipt and consideration of Mr Daunt’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.
- [7]This disciplinary action decision dated 22 August 2022 is the subject of Mr Daunt’s appeal, filed on 7 October 2022.
- [8]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 subsequently 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]
- [9]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.
- [10]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 throughout my consideration below.
Jurisdiction
- [11]The Public Sector Act 2022 (Qld) (‘the PS Act’) commenced on 1 March 2023, which repealed the previous Public Service Act 2008 (Qld)[5] in effect both at the time of the disciplinary action decision, and when Mr Daunt filed his appeal.
- [12]Immediately prior to the PS Act’s commencement, Mr Daunt’s appeal had not been decided. Therefore, the appeal will be heard and decided under chapter 3, part 10 of the PS Act.[6] I am satisfied that the disciplinary action decision is one that may be appealed against,[7] and that the Appellant is entitled to do so.[8]
- [13]I note that the appeal against the disciplinary action decision of 22 August 2022 was filed with the Industrial Registry on 7 October 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 attach a copy of the decision appealed against as required. Had the Appellant correctly filed his Appeal Notice in the first instance, it would have been lodged in time.
- [14]However, given the result of my consideration below, this jurisdictional issue is of little consequence, and therefore 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
- [15]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.
- [16]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.
Consideration
- [17]It is important at the outset of my consideration to clarify the scope of Mr Daunt’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 by the Department 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] I respectfully adopt Industrial Commissioner Dwyer’s finding in this regard in Stacey v State of Queensland (Department of Education) (‘Stacey’):[12]
[18] It is important to be clear in stating that an employee who does not challenge a preceding decision that they are liable to disciplinary action may not later revisit that finding as a basis for challenging the penalty subsequently imposed by a separate, subsequent decision. While there may be need to examine the preceding finding to e.g., evaluate whether the appealed penalty is excessive, the fundamental finding of conduct liable to disciplinary action cannot be disturbed.
(emphasis added)
- [18]Similarly, the Department’s previous decision to suspend Mr Daunt without pay is a decision that cannot now be disturbed. Mr Daunt’s attempts to raise matters regarding the reimbursement of income for this period, for example, will therefore not be considered further. For completeness, however, I refer the Appellant to Industrial Commissioner Pidgeon’s recent observations in Bailey v State of Queensland (Department of Education) regarding a similar argument advanced by the appellant in that matter:[13]
[22] … the Respondent notes that by virtue of his non-compliance with the Direction, Mr Bailey made himself unavailable to work and therefore, pursuant to cl 6.10 of the Suspension Directive, he is not entitled to be reimbursed for the suspension period.
[30] I will also not be considering any matter regarding wage recovery or reimbursement of income for the period Mr Bailey was suspended without pay. However, to assist Mr Bailey to avoid further fruitless applications, I will state here that any such claim made by Mr Bailey will fail for the reasons set out by the Respondent and canvassed above at [22] of this decision. Mr Bailey had not received the vaccine, which rendered him unavailable to work during his suspension. Therefore cl 6.10 of the Suspension Directive has no relevance to Mr Bailey’s circumstances.
- [19]The singular issue in contention in Mr Daunt’s appeal is whether the penalty imposed, by way of the disciplinary action decision of 22 August 2022, was fair and reasonable. However, Mr Daunt has not raised any unique or novel arguments in his submissions that would suggest he has an arguable case in this appeal. His submissions in fact suggest that he holds an entirely misconceived understanding of the nature of this appeal, in that he repeatedly attempts to challenge the finding that he is liable to disciplinary action.
- [20]Perhaps the most egregious of these attempts is Mr Daunt’s insistence on characterising the reason for the disciplinary action imposed on him as being his “failure to follow a direction to be injected twice with what can legally be referred to as an unapproved poison”.[14] He contends ‘poison’ is the “legally correct name” for COVID-19 vaccines, relying primarily on an instrument issued by the Therapeutic Goods Administration (‘the TGA’) entitled Therapeutic Goods (Poisons Standard) (COVID-19 Vaccine – Pfizer) (Raxtozinameran) Labelling Exemption 2023, and submits that he is “unsure why poison information was removed from the product labels or why this was allowed to happen.”[15]
- [21]Mr Daunt’s reason for insisting that the COVID-19 vaccines are legally ‘poison’ is staggeringly unnuanced. In Australia, medicines and chemicals are categorised into Schedules by the TGA, “according to the level of regulatory control over the availability of the medicine or chemical required to protect public health and safety.”[16] The Schedules are published in the Poisons Standard,[17] an instrument made under paragraph 52D(2)(b) of the Therapeutic Goods Act 1989 (Cth). The inclusion of a medicine or chemical in the Poisons Schedule does not, as the Appellant appears to suggest, mean that it is toxic, lethal, or inherently unsafe; Schedule 2 and 3 poisons (‘pharmacy medicines’ and ‘pharmacist only medicines’, respectively) include many analgesics (or painkillers) that are commonly referred to as over-the-counter medicines. The specific COVID-19 vaccine that is the subject of the labelling exemption to which Mr Daunt refers, includes an active ingredient classified as a ‘prescription only medicine’ within Schedule 4. Schedule 4 includes most medicines for which prescriptions are required, such as the tetanus booster vaccines that Mr Daunt submits he is “actually worried that he may not be up to date with”.[18]
- [22]Section 39 of the Poisons Standard allows for exemptions from label requirements in certain circumstances if an appropriate authority has granted a labelling exemption.[19] To the extent that Mr Daunt is unsure why the exemption relied upon was issued, he need not be. As clearly explained by the TGA, many batches of COVID-19 vaccines used in the Australian vaccination program were imported with an international label affixed omitting Australian-specific information (such as a ‘prescription only medicine’ label). The issuing of exemptions allowed for the use of those international labels, and for the timely distribution of COVID-19 vaccines during a global pandemic.[20]
- [23]Mr Daunt’s perplexing additional submission that the COVID-19 vaccines cannot be called vaccines at all because they do not “last a considerable amount of time”, is inane.[21] It is trite to state that several doses of a vaccine and/or booster vaccines are often required to remain immune to, or sufficiently protected against, a disease.
- [24]The Appellant’s further submission that the COVID-19 vaccines were entirely unapproved because they were only provisionally approved by the TGA, is also misconceived.[22] Provisional registration decisions for a vaccine still involve a full review and are only made by the TGA once “all required data relating to safety, quality and efficacy has been provided and assessed.”[23] The provisional pathway allows for the TGA to accept data on a rolling basis, collaborate with international regulators, and proactively work with sponsors, to expediate the evaluation of COVID-19 vaccines. The use of the provisional pathway is not so lenient so as to compromise the TGA’s strict standards of safety, quality and efficacy, as the Appellant appears to suggest.
- [25]In defining ‘Covid-19 vaccine’ as meaning “a vaccine that is approved for use in Australia or recognised by the Therapeutic Goods Administration”,[24] the Direction does not require employees to receive a COVID-19 vaccine that has not been subject to this approval process. The decision-maker was regardless not required to consider the efficacy of the COVID-19 vaccines in making the disciplinary action decision, particularly given the approval and recognition of the COVID-19 vaccines by both the TGA and the Australian Technical Advisory Group on Immunisation.
- [26]Mr Daunt has not provided evidence that the COVID-19 vaccines are ‘poison’ and/or ‘unapproved’ as he suggests, but rather has only emphasised just how detailed and stringent the national classification and evaluation systems Australia has in place are, and how they are in place to protect public health and safety.
- [27]As Mr Daunt’s appeal is not against the Department’s earlier decision that he had contravened the Direction without reasonable excuse, his attempts to question the grounds on which he is now liable for disciplinary action are entirely in vain. It is by now uncontroversial that Mr Daunt contravened, without reasonable excuse, the Direction to receive the prescribed doses of a COVID-19 vaccine.
Lawfulness and reasonableness of Direction
- [28]Many of Mr Daunt’s submissions revolve around his belief that the Direction with which he failed to comply was not lawful and reasonable. The various arguments that Mr Daunt advances in support of this ground of appeal, are all unoriginal.[25] In fact, they are often identical to those arguments already unsuccessfully advanced by several appellants in this Commission, including in my recent decisions of Sankey v State of Queensland (Department of Education) (‘Sankey’)[26] and Smith v State of Queensland (Department of Education) (‘Smith’).[27] In response to submissions of this nature in Sankey, I observed that “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.” While I have nonetheless addressed each submission of the Appellant in relation to this appeal ground, it has therefore often been unnecessary to do so at length.
Limited risk posed by COVID-19 renders Direction unreasonable
- [29]The Appellant argues (in submissions identically worded to those considered in, e.g., Sankey) that COVID-19 posed such a low risk, and that COVID-19 vaccines were so ineffective, that the Direction was unreasonable.[28] However, the veracity of these submissions is undermined by Mr Daunt himself. In the belief that its findings supported his appeal, the Appellant cites Martin J’s decision in Johnston & Ors v Carroll (Commissioner of the Queensland Police Service) & Anor; Witthahn & Ors v Wakefield (Chief Executive of Hospital and Health Services and Director General of Queensland Health); Sutton & Ors v Carroll (Commissioner of the Queensland Police Service)[29] (‘Johnston’), in which expert evidence was in fact accepted about the effectiveness of vaccination against COVID-19 and the absence of reasonably available alternatives to vaccination.[30]
- [30]Mr Daunt’s submission that the Department’s general characterisation of his concerns as amounting to vaccine hesitancy is an “attempt at name calling”,[31] is trivial. It also suggests that he has not had sufficient regard to the overwhelming number of relevant decisions of this Commission on which the Department has based its submission, a selection of which were usefully summarised by Industrial Commissioner Pratt in Davenport v State of Queensland (Department of Education):[32]
[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.
[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.
[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.
[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.
…
[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.
- [31]Mr Daunt’s reasons for not having a COVID-19 vaccine administered, while undoubtedly genuinely held, plainly amount to vaccine hesitancy. As repeatedly found by this Commission, vaccine hesitancy does not constitute a reasonable excuse for failing to comply with the Direction to be vaccinated.
Nuremberg Code
- [32]Mr Daunt submits that the Direction is not lawful or reasonable because its effect of “forcing people to take experimental pharmaceuticals/poisons is shockingly close to being a contravention of the Nuremburg [sic] code and could be considered similar to horrific war crimes of the past.”[33]
- [33]This argument is repulsive. It is also unfortunately not an original argument, and has been advanced in many jurisdictions, both nationally and internationally, in response to COVID-19 vaccination requirements. As Brooks J of the United States District Court for the Western District of Arkansas, Fayetteville Division, succinctly observed in relation to a similar argument:[34]
This Court agrees with the Southern District of Texas that it is reprehensible to equate [a] vaccine mandate to the Nazi Party’s medical experimentation in concentration camps, for which the Nuremberg Code was created, and is appalled by such a comparison. The Nuremberg Code originated from a specific case in the Nuremberg Trials, U. S. A. v Karl Brandt et al., referred to as “The Doctors’ Trial,” in which
[t]he specific crimes charged included more than twelve series of medical experiments concerning the effects of and treatments for high altitude conditions, freezing, malaria, poison gas, sulfanilamide, bone, muscle and nerve regeneration, bone transplantation, saltwater consumption, epidemic jaundice, sterilisation, typhus, poisons, and incendiary bombs.
These experiments were conducted on concentration camp inmates. Other crimes involved the killing of Jews for anatomical research, the killing of tubercular Poles, and the euthanasia of sick and disabled civilians in Germany and occupied territories.
- [34]An employer directing that their employees be vaccinated against COVID-19 is “simply nowhere near the same as Nazi doctors performing experiments on victims held against their will in concentration camps, as was the subject of a portion of the Nuremberg Trials.”[35] Mr Daunt’s ignorant endeavour to compare his situation to that of the victims of Nazi Germany’s genocidal regime, will not be entertained in any way by this Commission.
- [35]This argument is regardless woefully insufficient, in that Mr Daunt fails to demonstrate how a violation of the Nuremberg Code would give rise to this Commission’s jurisdiction. The Nuremberg Code is not binding law, but a set of principles that a panel of judges laid out as points for ethical medical experimentation. Even if a norm of customary international law prohibiting medical experimentation on human subjects without their consent had been violated by the Department, the Queensland Industrial Relations Commission would not be the appropriate forum for such arguments to be aired.
Direction violates his human rights
- [36]Mr Daunt submits that the Direction is unlawful, as the “direction to have an inadequately tested, potentially lethal poison injected into my body” would be subjecting him to “torture or to cruel, inhuman [sic] or degrading treatment” pursuant to Article 5 of the Universal Declaration of Human Rights.[36]
- [37]This argument is misconceived; the Universal Declaration of Human Rights has no binding legal effect on the Department. Even if it did apply to the Department, I agree with Industrial Commissioner Dwyer’s observations in Rae v State of Queensland (Queensland Health) regarding a similar argument:[37]
[48] … the vaccine mandate that arises from the policy implemented by the department does not compel [the appellant] to have the vaccine. It does not compel him to undergo any ‘preventative, diagnostic and therapeutic medical intervention’. The only compulsion imposed on [the appellant] is to make a choice about whether he will comply with a direction from his employer.
- [38]Mr Daunt’s submission regarding the application of the Human Rights Act 2019 (Qld) must fail for a similar reason; his suggestion that he was forced or coerced into being vaccinated against COVID-19 explicitly contradicts his submission that he chose to not be vaccinated against COVID-19, which he maintains was “the right decision” that he has “not regretted … once”.[38] For completeness, any argument regarding the coercive effect of the Direction is misconceived. As found by Deputy President Merrell in Graf and Ors v State of Queensland (Department of Education):[39]
[39] By the Direction, the Director-General of the Department was not coercing each Appellant to receive a medical service or an invasive medical procedure. It was up to each Appellant as to whether or not they would comply with a lawful direction given to them by their employer. The direction to be vaccinated is no different to any other lawful direction given by an employer to an employee about a matter concerning the employee’s health and safety or the health and safety of other employees or persons associated with the employer’s undertaking. Some employees may, for a range of reasons, no comply with such a direction. But that is a matter for each employee. The fact that there may be disciplinary consequences for the failure of an employee to comply with such a direction does not mean that each Appellant was being coerced into receiving a dose or doses of a COVID-19 vaccine. The will of each Appellant was not being overborne. Each Appellant had a real choice as to whether or not they complied with the Direction.
(emphasis added)
- [39]The Human Rights Act 2019 (Qld) is regardless of little weight in Mr Daunt’s appeal. I respectfully adopt Industrial Commissioner Caddie’s observations in this regard in Sturgess v State of Queensland (Department of Education):[40]
[41] … the Commission has considered that COVID-19 directions more broadly are not inconsistent with the HR Act, 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.
[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.
(emphasis added)
Employment contract
- [40]Mr Daunt’s submission regarding the Direction’s incompatibility with 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 in the below finding, which I respectfully adopt in relation to Mr Daunt’s appeal:[41]
[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)
Department did not have to issue Direction
- [41]The Appellant contends that “it was not compulsory for the Department to make this direction” and that the Department chose to “deny Australian citizens their Constitutional and Human rights” by issuing the Direction.[42] He also argues that Queensland’s Chief Health Officer’s comments about the limited effect of COVID-19 on children, are inconsistent with the Department defining schools as high-risk settings.[43]
- [42]These submissions are entirely misconceived and merely illustrate that the Appellant’s understanding of the origin and purpose of the Direction is fundamentally flawed. As I observed in Sankey in relation to a similar argument:[44]
[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 of 11 December 2021, and the revised COVID-19 Vaccination Requirements for Workers in a high-risk setting Direction (No. 2) of 4 February 2022 (‘the CHO Direction’). The CHO, as the most senior medical officer in Queensland, gave these directions pursuant to s 362B of the Public Health Act 2005 (Qld), in an attempt to supress a potentially deadly virus.
[31] The Department was obliged to comply with the CHO Direction, and it was entirely reasonable for the Department to implement the Direction (which is not materially different from the CHO Direction) to ensure they did so. [The appellant’s] argument in [their] 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 [the appellant], [they] could not lawfully enter, or work at, [a school], and the Department was (amongst other things) required to take all reasonable steps to prevent [them] from doing so.
(emphasis added)
The Direction contravened existing legislative protections/obligations
- [43]The Appellant’s submission that the Direction contravened existing legislative protections,[45] including those afforded by the Privacy Act 1988 (Cth), is again identical to submissions made by the appellants in both Sankey and Smith, and is similarly misconceived. As I relevantly found in Smith:[46]
[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). 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] 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.
- [44]Further, Mr Daunt’s submissions in relation to not being supplied risk assessments despite requesting them, and not being adequately consulted with about the Direction, are irrelevant to a decision in relation to disciplinary action.[47] They are regardless unoriginal, despite his insistence to the contrary.[48] As I observed in Sankey:[49]
[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.”
Availability of alternative working arrangements
- [45]Mr Daunt’s insistence that he was available for work while suspended without pay, and could have “worked from home or worked on site with sensible restrictions in place”, is irrelevant to this appeal, and is severely misconceived.[50] As I found in Smith, “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.”[51]
- [46]Even where alternative working arrangements could have been accommodated by the Department, I rely on, and adopt, my findings in Donaldson v State of Queensland (Department of Education) in relation to a similar argument:[52]
[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.
(emphasis added)
Disciplinary action is excessive
- [47]Lastly, the Appellant makes extensive submissions about the consequences of his
non-compliance with the Direction, contending that disciplinary action has already been imposed by the Department and that the disciplinary action decision now appealed against is therefore excessive.[53] In essence, he submits that the various negative consequences outlined that “adversely affected [his] life” ought to be taken as disciplinary action imposed by the Department.[54] In doing so, the Appellant erroneously “conflates the consequences of his decision not to get vaccinated with the consequences now being imposed on him by the Department for his proven misconduct.”[55] As observed by Industrial Commissioner Dwyer in Stacey:[56]
[48] Mr Stacey seeks to characterise all of this suffering as somehow having been imposed by the Department. But all of this was exclusively a consequence of his choice not to be vaccinated. Mr Stacey’s inability to enter Department premises and perform work was entirely a feature of the health directive in place at the time. It prohibited inter alia unvaccinated employees from attending schools.
[49] All of the hardship detailed in Mr Stacey’s submissions was not a penalty imposed by the Department for noncompliance. It was hardship that he imposed on himself and his family through his choice to not be vaccinated. Mr Stacey was entirely free to have made that choice, but the consequences of that choice are his responsibility.
[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.
[51] So, to the extent that Mr Stacey asserts he has already been punished for his misconduct, he is incorrect.
(emphasis added)
- [48]As I found in my recent decision in Gatongi v State of Queensland (Department of Education), where an employee has “clearly disobeyed a lawful and reasonable direction, and continues to assert that [their] doing so was justified, a reduction in renumeration and a reprimand is not heavy-handed, but rather is an entirely lenient consequence”.[57] As noted by Industrial Commissioner Dwyer in Stacey:[58]
[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.
- [49]Mr Daunt has ultimately avoided the termination of his employment in circumstances where it was open to the Department to impose a far heavier penalty.[59] That the Appellant has, despite this, attempted to argue that the disciplinary action decision is unfair or unreasonable, serves only to demonstrate the staggering lack of insight he possesses with such matters.
Conclusion
- [50]It cannot be disputed that Mr Daunt was an employee of the Department that was required to comply with the Direction, that he failed to comply with that Direction, and that he did not have a reasonable excuse for his non-compliance. It is also by now well-established that failure to comply with a lawful and reasonable direction is a serious act of insubordination.[60] As the Direction’s lawfulness and reasonableness cannot be disputed, it is inevitable that Mr Daunt would be sanctioned for failing to comply with it.
- [51]In the face of a multitude of reliable sources of information confirming the safety and efficacy of COVID-19 vaccines, Mr Daunt has “chosen to reject them in favour of those that no doubt support his own personal views or speak to his inherent concerns.”[61] It is clear from his submissions that the Appellant was hesitant to be administered the COVID-19 vaccine (if not entirely dismissive of the prospect) and decided to act in accordance with his concerns and beliefs, rather than with his employer’s direction to be vaccinated. While the Appellant was free to decide to not comply with his employer’s lawful and reasonable direction, it is not incumbent on the Department to accept or entertain the views of the Applicant that led to his noncompliance.[62] The Appellant’s refusal to take any accountability for his actions and their inevitable consequences, is a testament to the extent of his recalcitrance.
- [52]Mr Daunt’s apparent ignorance of the multitude of decisions of this Commission comprehensively addressing the arguments he has advanced in this appeal, is no justification for allowing him to reagitate those same arguments, now found to be entirely lacking in merit and substance. That is particularly so when Mr Daunt has made no attempt to distinguish his own submissions from similar (and often identical) submissions made by other appellants in proceedings before this Commission, which have been routinely rejected and found to be unmeritorious.[63]
- [53]The Commission’s 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.”[64]
Mr Daunt’s attempts to reagitate arguments repeatedly found to be unmeritorious, or that are of no relevance to his appeal, should not be indulged further, and I order accordingly.
Order
- [54]I make the following order accordingly:
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] Respondent’s submissions, filed 27 June 2024, [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] [2024] QIRC 220 [18].
[13] [2024] QIRC 218 [22], [30].
[14] Ibid, 1.
[15] Ibid.
[16] Therapeutic Goods Administration, ‘Scheduling basics of medicines and chemicals in Australia’ (Web Page, accessed 3 October 2024) <https://www.tga.gov.au/scheduling-basics-medicines-and-chemicals-australia>.
[17] Presently, the Therapeutic Goods (Poisons Standard – October 2024) Instrument 2024.
[18] Appellant’s further submissions, filed 12 July 2024, 4; Australian Immunisation Handbook, ‘Tetanus’ (Web Page, accessed 3 October 2024) <https://immunisationhandbook.health.gov.au/contents/vaccine-preventable-diseases/tetanus>.
[19] Therapeutic Goods (Poisons Standard – October 2024) Instrument 2024 (Cth).
[20] Therapeutic Goods Administration, ‘Labels for COVID-19 vaccines’ (Web Page, accessed 3 October 2024)
< https://www.tga.gov.au/resources/resource/reference-material/labels-covid-19-vaccines>.
[21] Ibid, 3.
[22] Appellant’s further submissions, filed 12 July 2024, 9.
[23] Therapeutic Goods Administration, ‘COVID-19 vaccines regulatory status’ (Web Page, 30 August 2024)
< https://www.tga.gov.au/products/covid-19/covid-19-vaccines/covid-19-vaccines-regulatory-status>.
[24] See definition of ‘Covid-19 vaccine’ on page 3 of Employment Direction 1/22 – COVID-19 Vaccinations, effective 10 March 2022.
[25] Appeal Notice, filed 7 October 2022, 13.
[26] [2024] QIRC 197.
[27] [2024] QIRC 243.
[28] Appellant’s submissions, filed 7 June 2024, 5-6.
[29] [2024] QSC 2. I note that the Appellant’s submission that this decision is one of the Queensland Industrial Relations Commission is incorrect; it is a decision of the Supreme Court of Queensland.
[30] See Sankey v State of Queensland (Department of Education) [2024] QIRC 197 [29].
[31] Appellant’s further submissions, filed 12 July 2024, 4.
[32] [2024] QIRC 206 [19]-[24], citing Borough v State of Queensland (Department of Environment and Science) [2022] QIRC 357 [40]; Friis v State of Queensland (Queensland Ambulance Service) [2022] QIRC 360 [32]; Batchelor v State of Queensland (Department of Environment and Science) [2022] QIRC 252 [47]; Sainty v State of Queensland (Queensland Health) (No. 2) [2023] QIRC 78; and Mackenzie v State of Queensland (Queensland Health) [2023] QIRC 121.
[33] Appellant’s submissions, filed 7 June 2024, 8.
[34] Jackson v Tyson Foods, Inc (WD Ark, No. 5:23-CV-5102, 27 November 2023), citing Harvard Law School Library Nuremberg Trials Project, ‘NMT Case 1: U.S.A. v. Karl Brandt et al.: The Doctors’ Trial’ (Web Page) < https://nuremberg.law.harvard.edu/nmt_1_intro>.
[35] Johnson v Brown, 567 F. Supp. 3d 1230 (D Or, 2021).
[36] Appellant’s submissions, filed 7 June 2024, 8.
[37] [2022] QIRC 160 [48].
[38] Appellant’s submissions, filed 7 June 2024, 9.
[39] [2022] QIRC 451, [39].
[40] [2024] QIRC 236 [41]-[42].
[41] [2022] QIRC 226 [42]-[44]; see also Brasell-Dellow & Ors v State of Queensland (Queensland Police Service) & Ors [2021] QIRC 356 [65].
[42] Appellant’s submissions, filed 7 June 2024, 7.
[43] Appellant’s submissions, filed 7 June 2024, 7.
[44] Sankey v State of Queensland (Department of Education) [2024] QIRC 197 [30]-[31].
[45] Appeal Notice, filed 7 October 2022, 14.
[46] Smith v State of Queensland (Department of Education) [2024] QIRC 243 [27], citing Rossiter v State of Queensland (Department of Education) [2024] QIRC 025 [23], which in turn cites Mocnik & Others v State of Queensland (Queensland Health) [2023] QIRC 058.
[47] Radanovic v State of Queensland (Department of Education) [2024] QIRC 225 [32].
[48] Appeal Notice, filed 7 October 2022, 4; Appellant’s submissions, filed 7 June 2024, 10-11.
[49] [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].
[50] Appellant’s further submissions, filed 12 July 2024, 14.
[51] [2024] QIRC 243 [36].
[52] [2024] QIRC 239 [25]-[27]; citing Brailey v State of Queensland (Department of Education) [2022] QIRC 401 [48]-[49].
[53] Appellant’s submissions, filed 7 June 2024, 3-4.
[54] Appellant’s submissions, filed 7 June 2024, [29].
[55] Stacey v State of Queensland (Department of Education) [2024] QIRC 220 [46].
[56] Ibid [48]-[51].
[57] See Gatongi v State of Queensland (Department of Education) [2024] QIRC 233.
[58] Stacey v State of Queensland (Department of Education) [2024] QIRC 220 [38].
[59] [2024] QIRC 233 [35]; Stacey v State of Queensland (Department of Education) [2024] QIRC 220 [43]-[44].
[60] See Stacey v State of Queensland (Department of Education) [2024] QIRC 220 [37].
[61] Rae v State of Queensland (Queensland Health) [2022] QIRC 160.
[62] For example, see Tilley v State of Queensland (Queensland Health) [2022] QIRC 002; Higgins v State of Queensland (Queensland Health) [2022] QIRC 030.
[63] Smith v State of Queensland (Department of Education) [2024] QIRC 243 [24], citing Reh v State of Queensland (Department of Education) [2023] QIRC 149 [18], [21].
[64] Donaldson v State of Queensland (Department of Education) [2024] QIRC 239 [18].