Starkey v State of Queensland (Department of Education)
[2024] QIRC 296
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- Starkey v State of Queensland (Department of Education)[2024] QIRC 296
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Starkey v State of Queensland (Department of Education)[2024] QIRC 296
Starkey v State of Queensland (Department of Education)[2024] QIRC 296
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Starkey v State of Queensland (Department of Education) [2024] QIRC 296 |
PARTIES: | Starkey, Lucy Marie (Appellant) & State of Queensland (Department of Education) (Respondent) |
CASE NO: | PSA/2022/925 |
PROCEEDING: | Public Sector Appeal – Appeal against a disciplinary decision |
DELIVERED ON: | 16 December 2024 |
MEMBER: HEARD AT: | Caddie IC 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 – appeal against a disciplinary decision – where appellant is employed by the State of Queensland (Department of Education) as an Experienced Senior Teacher – where Employment Direction 1/22 – COVID-19 Vaccinations required the appellant to receive the first dose of a COVID-19 vaccine by 17 December 2021, the prescribed number of doses of a COVID-19 vaccine by 23 January 2022, and to provide evidence of such vaccination by 24 January 2022 – where appellant did not comply – where respondent imposed a disciplinary penalty of reprimand and a reduction in remuneration level for a period of 18 weeks – material indicates submissions similar to those which have been unsuccessfully raised by other appellants before the commission – where a letter from a pastor does not constitute an exemption – consideration of whether to hear the appeal – appeal has no prospects of success – appeal dismissed. |
LEGISLATION: | Biosecurity Act 2015 (Cth). Criminal Code Act 1995 (Cth). Human Rights Act 2019 (Qld). Industrial Relations Act 2016 (Qld) s 562A. Public Sector Act 2022 (Qld) Ch 3 Pt 10. Work Health And Safety Act 2011 (Qld). |
CASES: | Bakhash v State of Queensland (Department of Education [2022] QIRC 362. Batchelor v State of Queensland (Department of Environment and Science) [2022] QIRC 252. Carr v State of Queensland (Department of Education) [2024] QIRC 210. Daunt v State of Queensland (Department of Education) [2024] QIRC 251. Elliott v State of Queensland (Queensland Health) [2022] QIRC 332. Graf v State of Queensland (Department of Education) [2022] QIRC 451. Johnston & Ors v Carroll (Commissioner of the Queensland Police Service) & Anor; Witthahn & Ors v Wakefield (Chief Executive of Hospital and Health Services and Director General of Queensland Health); Sutton & Ors v Carroll (Commissioner of the Queensland Police Service) [2024] QSC 2. Kassam v Hazzard; Henry v Hazzard [2021] NSWSC 1320. McPaul v State of Queensland (Queensland Health) [2022] QIRC 175. Meades v Meades [2012] ABQB 571; [2013] 3 WWR 419 Mocnik & Ors v State of Queensland (Queensland Health) [2023] QIRC 058. Nicholson v State of Queensland (Department of Education) [2022] QIRC 271. O'Hearn v State of Queensland (Queensland Health) [2023] QIRC 283. Sankey v State of Queensland [2024] QIRC 197. Stacey v State of Queensland (Department of Education) [2024] QIRC 220. Sturgess v State of Queensland (Department of Education) [2024] QIRC 236. Tilley v State of Queensland (Queensland Health) [2022] QIRC 2. Thorley v State of Queensland (Department of Education) [2022] QIRC 133. |
Reasons for Decision
Introduction
- [1]On 30 September 2022, Ms Lucy Starkey; now a Senior Teacher at Coomera State School; filed an appeal against the disciplinary action decision of Ms Anne Crowley (Assistant Director-General, Human Resources, Department of Education), to impose a reduction in remuneration level for a period of 18 weeks and a reprimand.
- [2]The disciplinary action was imposed due to Ms Starkey's failure to receive two doses of a COVID vaccine, and was decided after the required steps in the disciplinary process had concluded.
- [3]By cl 5 of the Employment Direction 1/22 – COVID-19 Vaccinations dated 10 March 2022 ('the Direction'), Ms Starkey was required to:
- receive the first dose of a COVID-19 vaccine by 17 December 2021;
- receive the prescribed number of doses of a COVID-19 vaccine by 23 January 2022; and
- provide evidence of such vaccination by 24 January 2022.
- [4]Ms Starkey does not dispute she did not comply with the requirements of the Direction, but states she was exempted due to her genuinely held religious beliefs. Additionally, she relies on the standard set of objections to the Direction previously considered and rejected by the Commission on numerous occasions.
- [5]Ms Starkey indicated to O'Connor VP at a callover on 18 April 2024 that she wished to proceed with her appeal. The Commission subsequently issued directions requiring submissions as to whether the appeal should be dismissed pursuant to s 562A(3)(b) because it is either frivolous or vexatious, misconceived or lacking in substance, or should not be heard for another compelling reason.
- [6]That is the question subject to this decision.
Relevant legislation
- [7]
562ACommission 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 –
…
(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.
- [8]I am satisfied that in accordance with Ch 3, Pt 10 of the Public Sector Act 2022 (Qld), the substantive disciplinary action decision is one that may be appealed against, that Ms Starkey is entitled to do so, and that the appeal was lodged within the required time.[2] There is no jurisdictional reason to decline to hear the appeal.
- [9]I note for context, that public sector appeals are by way of review of the decision appealed against, based on the information available and process followed in reaching the decision. Any findings reasonably open to the decision-maker are not expected to be disturbed on appeal.[3]
Ms Starkey's reasons for the appeal being heard:
- [10]Ms Starkey's appeal notice was accompanied by a lengthy submission nearly identical in substance to those filed by other Department of Education COVID Direction appellants.[4] Ms Starkey's appeal notice did have particular focus on her purported exemption for her religious beliefs and the circumstances surrounding her working from home arrangements. These key arguments are repeated in her submissions to the current application, and it is these submissions that are the focus for my consideration of the current matter.
- [11]In summary they include:
- Ms Starkey held an approved religious exemption, which had not and would not expire because they are her personal religious beliefs.[5] In the alternative, her religious beliefs are inalienable and where a law conflicts with "God's higher law," it is God's law that takes precedence, and she is being discriminated against for her beliefs;
- In the alternative, the Queensland Police Service provided an option for a religious exemption, and given that teachers employed by the Department share the same employer in the State of Queensland, Departmental teachers should also be granted an exemption;
- The Department took a 'one size fits all' approach to the Direction, which did not consider the needs of employees as required by the Work Health And Safety Act 2011 (Qld) ('WHS Act'), and the Ms Starkey should have been individually consulted, Additionally, the Department's Workplace Health & Safety Policies and Procedures section only recommends rather than mandates vaccinations;
- Ms Starkey was previously employed on alternative duties to work from home to support her Principal, and it was feasible for her to continue with alternative workplace arrangements;
- Ms Starkey's human rights have not been met;
- A series of pseudo-legal arguments written by Pastor Mark Ironside of the Harvest Point Church in support of Ms Starkey (and others), seeking to lead the Commission to a conclusion that the Direction is invalid on impugned grounds of constitutional invalidity, invalidity based on nominated legislation and the Australian Immunisation Handbook guidelines, the Human Rights Act 2019 (Qld), and the Nuremberg Code;
- The decision in Johnston & Ors v Carroll[6] found Police vaccine directions were unlawful. Ms Starkey argues that the Department of Education failed to consider her human rights in the same way, and therefore the Direction was unlawful. In the alternative, she submits that in the same decision, the Queensland Ambulance Service was found not to have the power to make health mandates under employment and contract law, and the same should apply here; and
- In regards to the penalty, Ms Starkey submits the Department is punishing her with a pay reduction "for actually working," given that she was already permitted to work on alternate duties. She further submits the punishment did not have regard to her "exemplary service record" as a permanent employee since 2019.
- [12]Ms Starkey also attached a Queensland Teachers' Union newsletter dated 30 November 2021, which she claims provided advice that she should seek a religious exemption. I note that the newsletter provided no such advice, and instead stated:
We are advised that for the order to be discriminatory it must adversely affect persons with a protected attribute, such as a medical condition or religious beliefs. Conscientious objection or vaccine hesitancy is not a protected attribute. Therefore, the health directives do not meet the definition of discrimination and any discrimination claim is likely to fail.
The Union is also advised that the public health directive is unlikely to be found to be a breach of a member's human rights or against a person's right to medical treatment.
…
Courts are likely to agree that the balance between safety of the public in general and individual freedom of conscience, weighs in favour of limiting freedom of conscience in the way set out in the public health directive. The temporary nature of the restrictions is also a significant feature of this conclusion.
The Department's arguments for declining to hear the appeal
- [13]The Department filed its submissions on 31 May 2024. These submissions were identical in tenor to the submissions it has previously filed in similar appeals, including that she has no reasonable excuse for her failure to comply with the Direction, the Direction has repeatedly been found to be lawful and reasonable, and her arguments are not unique and do not warrant further use of the Commission's resources.[7]
- [14]The Department does however provide insight into the status of Ms Starkey's alleged exemption. The Department states that she applied for an exemption on 17 December 2021, supported by a letter from Pastor Mark Ironside. Ms Starkey was suspended on normal remuneration between 3 February 2022 until 10 February 2022, at which point Ms Starkey was temporarily approved to undergo alternative duties while her exemption was being considered. The exemption application was rejected on 22 March 2022.[8]
Should I decline to hear the appeal?
- [15]It is not controversial that Ms Starkey failed to comply with the Direction to be vaccinated. This led to the disciplinary finding that she contravened, without reasonable excuse, a direction appropriately given. She was liable to disciplinary action, and the decision on findings was not appealed.
- [16]The decision to impose the disciplinary penalty arising from the findings and following the requisite show cause process is the decision relevant to the substantive appeal, and logically, any exercise of my discretion to decline to hear it.
- [17]It is well-established that a failure to follow a lawful and reasonable direction is serious misconduct within the ordinary meaning of the phrase.[9] The decision to confine the penalty to a reduction in classification for 18 weeks (reduced from 20 weeks) and a reprimand could be characterised as at the lighter end of the disciplinary spectrum.[10]
- [18]It is important to note that the penalty relates to the finding that Ms Starkey breached a relevant Direction without reasonable excuse, and is not a penalty for anything else leading to it, including any consequences of her own decision not to be vaccinated and her inability to return to the workplace while the Direction was in place.[11] Whether the Department allowed Ms Starkey to continue working on alternate duties while her exemption request was being considered has no bearing on Ms Starkey’s choice to remain unvaccinated after her exemption request had been refused. It is appropriate that Ms Starkey was given the same penalties as other Departmental employees for whom there was the same disciplinary finding.
- [19]With regards to Ms Starkey's submissions regarding her human rights, the decision letter expressly considered her human rights, acknowledged that the disciplinary action may limit her 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,[12] and in accordance with the Direction.[13]
- [20]With regards to Ms Starkey's religious views, the Direction does not provide for religious or spiritual exemptions.[14] The Commission has not found this to be unreasonable.[15] Ms Starkey's religious views, whilst clearly genuinely held, are not relevant to the appeal. Her submissions that she was previously granted an exemption are also misconceived, and I find the Department's explanation that she was allowed to work from home whilst the application was being considered provides an adequate explanation. The statement from her pastor or an assertion of her inalienable rights are not sufficient grounds for her failure to comply with the Direction.
- [21]With regards to Ms Starkey's submissions that the Department's 'one size fits all' approach did not consider the needs of employees as required by the WHS Act, this matter was considered by Pidgeon IC in Thorley v State of Queensland.[16] The Department consulted with its employees to the extent that was reasonably practicable.[17]
- [22]Regarding Ms Starkey's submission on the decision in Johnston[18] these have also been rejected by the Commission in detail. In Sturgess v State of Queensland,[19] I said that the decision in Johnston turned on its own facts and has no bearing on the Direction in question – the Commission has no jurisdiction to make a declaration or finding on its lawfulness.[20]
Pseudo-legal arguments are not unique
- [23]In support of her claim of religious exemption, Ms Starkey endorses and seeks to rely on a statement of Pastor Mark Ironside. This statement includes common pseudo-legal arguments 'promoted by those seeking to disrupt court operations and attempt to frustrate legal rights.'[21] Submissions regarding the application of the Australian Constitution and the Nuremberg Code can appropriately be dismissed.[22] These are submissions which are unfortunately commonly made before the Commission in COVID-19 disciplinary appeals.[23] This Commission, as well as other Courts, have repeatedly given no weight to submissions of this nature.[24] I see no reason in the case advanced by Ms Starkey to depart from that approach.
- [24]The submissions regarding the Biosecurity Act 2015 (Cth) the Criminal Code Act 1995 (Cth), and the Australian Immunisation Handbook are equally irrelevant. The vaccines subject to the Direction were approved by the TGA.[25] Further, the Department following lawful disciplinary procedures is in no way an unlawful threat, intimidation, or coercion.[26]
Conclusion
- [25]Returning to the relevant considerations for the exercise of my discretion to decline to hear the appeal, I consider that the submissions made by Ms Starkey have not established an arguable case for the appeal.
- [26]The arguments in relation to the Direction not being lawful and not consistent with human rights are misconceived for the reasons outlined above. The matters contained within Ms Starkey's submissions have been the subject of numerous appeals before this Commission and have been dismissed.
- [27]This leads me to conclude that the appeal has no reasonable prospects of success, and it would not be in the public interest for the Commission's resources to be further expended.
- [28]For these reasons I decline to hear the appeal.
Order
1. Pursuant to s 562A(3) of the Industrial Relations Act 2016 (Qld) I decline to hear the appeal.
Footnotes
[1] Emphasis added.
[2] Public Sector Act 2022 (Qld) ss 129, 131(1)(c), 133(c); Industrial Relations Act 2016 (Qld) s 564.
[3] O'Hearn v State of Queensland (Queensland Health) [2023] QIRC 283, [10].
[4] See e.g. Stacey v State of Queensland (Department of Education) [2024] QIRC 220 ('Stacey'), [25]-[28]; Sankey v State of Queensland [2024] QIRC 197 ('Sankey'); Carr v State of Queensland (Department of Education) [2024] QIRC 210 ('Carr').
[5] The Department submits that Ms Starkey at no times held an approved religious exemption, and in fact was denied one on 22 March 2022.
[6] Johnston & Ors v Carroll (Commissioner of the Queensland Police Service) & Anor; Witthahn & Ors v Wakefield (Chief Executive of Hospital and Health Services and Director General of Queensland Health); Sutton & Ors v Carroll (Commissioner of the Queensland Police Service) [2024] QSC 2 ('Johnston'). Ms Starkey imprecisely refers to this case in their submissions as "the Supreme Court decision by Justice Glenn Martin which declared the COVID mandate for police officers was unlawful."
[7] I have previously set out these submissions in Sturgess v State of Queensland (Department of Education) [2024] QIRC 236 ('Sturgess') at [23].
[8] Respondent's submissions filed 31 May 2024, [5]-[6].
[9] Stacey (n 4) at [37].
[10] Ibid, [42].
[11] Ibid.
[12] See for example Thorley v State of Queensland (Department of Education) [2022] QIRC 133 ('Thorley')
[13] Bakhash v State of Queensland (Department of Education [2022] QIRC 362; Elliott v State of Queensland (Queensland Health) [2022] QIRC 332; Mocnik & Ors v State of Queensland (Queensland Health) [2023] QIRC 058.
[14] Nicholson v State of Queensland (Department of Education) [2022] QIRC 271, [40].
[15] Ibid.
[16] Thorley (n 12).
[17] Ibid, [63]-[66].
[18] n 6.
[19] Sturgess (n 7).
[20] Ibid, [33]-[38]. See also Sankey (n 4), [30]-[31]; Carr (n 4).
[21] Meades v Meades [2012] ABQB 571; [2013] 3 WWR 419, [1].
[22] See e.g. Daunt v State of Queensland (Department of Education) [2024] QIRC 251 ('Daunt') at [32]-[35] regarding the Nuremberg Code, and Tilley v State of Queensland (Queensland Health) [2022] QIRC 2 ('Tilley') at [35]-[37] regarding the Constitution.
[23] See e.g. McPaul v State of Queensland (Queensland Health) [2022] QIRC 175.
[24] See e.g. Tilley (n 22); Batchelor v State of Queensland (Department of Environment and Science) [2022] QIRC 252; Graf v State of Queensland (Department of Education) [2022] QIRC 451 ('Graf'). See also Kassam v Hazzard; Henry v Hazzard [2021] NSWSC 1320.
[25] See e.g. Daunt (n 22) at [20]-[26].
[26] Graf (n 24), [67].