Daley v State of Queensland (Department of Education) [2023] QIRC 277

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Daley v State of Queensland (Department of Education) [2023] QIRC 277 PARTIES: Daley, Brian (Appellant) v State of Queensland (Department of Education) (Respondent) CASE NO: PSA/2022/883 PROCEEDING: Public Sector Appeal – Appeal against a disciplinary decision DELIVERED ON: 26 September 2023 MEMBER: HEARD AT: Dwyer IC On the papers ORDER: 1. Pursuant to s 562A(3) of the Industrial Relations Act 2016 (Qld) the appeal is dismissed. 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 a 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 -- 1 of 7 -- 2 January 2022 – where appellant did not comply – where respondent imposed a disciplinary penalty of reprimand and a reduction in remunerational level for a period of 18 weeks – material indicates submission similar to those which have been unsuccessfully raised by other appellants before the commission – consideration of whether to hear the appeal – appeal has no prospects of success – appeal dismissed LEGISLATION AND OTHER INSTRUMENTS: CASES: Employment Direction 1/22 – COVID-19 Vaccinations cl 5 Industrial Relations Act 2016 (Qld) s 562A Work Health and Safety Act 2011 (Qld) Mocnik & Others v State of Queensland (Queensland Health) [2023] QIRC 58 Reasons for Decision Introduction [1] Mr Brian Daley is employed by the State of Queensland (Department of Education) ('the Respondent') as a Senior Teacher at the Cleveland Education and Training Centre. [2] By cl 5 of the Employment Direction 1/22 – COVID-19 Vaccinations dated 10 March 2022 ('the direction'), Mr Daley 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. [3] On 10 June 2022, Mr David Miller, Executive Director, Early Learning and Development, wrote to Mr Daley and invited him to respond to an allegation that he had contravened, without reasonable excuse, cl 5 of the direction. Mr Daley responded on 24 June 2022, stating that he held various concerns including inter alia a lack of consultation and risk assessment. -- 2 of 7 -- 3 [4] On 1 August 2022, Ms Anne Crowley, Assistant Director-General, Human Resources, found that Mr Daley had contravened the direction. Mr Daley was then afforded seven days to show cause why disciplinary action should not be taken against him. Mr Daley responded on 8 August 2022. [5] On 22 August 2022, Ms Crowley made a decision to impose a disciplinary action of a reprimand and a reduction in remunerational level for a period of 18 weeks ('the decision'). The decision is the subject of Mr Daley's appeal. Proceedings before the Commission [6] Mr Daley's appeal was listed for a conference before another member of the Commission on 28 June 2023. The conference was unsuccessful and directions were issued requiring the filing of submissions pertaining to s 562A of the Industrial Relations Act 2016 (Qld) ('IR Act'). [7] Mr Daley's appeal was subsequently reallocated to the Commission as currently constituted and was listed for a mention on 14 August 2023. At the mention of the appeal, the Commission put Mr Daley on notice that, after having considered the filed material, it was contemplating not hearing the appeal. [8] The Commission was intending to offer Mr Daley the option of filing written submissions but Mr Daley sought to make submissions during the mention about why his appeal ought to be dealt with. In the course of making those submission Mr Daley began to allude to 'new' evidence which, as it transpired, was the Western Australian Vaccine Safety Surveillance – Annual Report 2021 ('the WA report'). Neither the Commission nor the Respondent had the WA report, so Mr Daley was directed to cease making his submission and revert to the original proposal i.e. the filing of written submissions (including filing and service of the WA report). Relevant legislation [9] Section 562A of the IR Act provides as follows: 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 – -- 3 of 7 -- 4 (i) is frivolous or vexatious; or (ii) is misconceived or lacks substance; or (iii) should not be heard for another compelling reason. (Emphasis added) Mr Daley's submissions [10] Mr Daley originally filed submissions in respect of s 562A of the IR Act on 12 July 2023. They traverse trite propositions that have been heard and determined by the Commission on several occasions. While the Commission has carefully considered each of Mr Daley's submissions, it does not intend on reciting them in detail in these reasons. [11] In summary, Mr Daley appears to have serious concerns with the safety and efficacy of the vaccine. He submits that: • he has concerns with some of the side effects associated with the AstraZeneca vaccine, namely blood clotting; • his medical history affects his ability to comply with the direction; • the vaccine does not prevent transmission of COVID-19; and • the Respondent is coercing employees to take the vaccine and he is therefore unable to give informed consent. [12] Mr Daley filed further submissions on 18 August 2023. Accompanying Mr Daley's submissions is the WA report. [13] Mr Daley relies on the WA report to support a submission that the alleged dangers of the vaccine that he has been relying on are proven by the data contained in that report. His submissions relevantly provide: In my submission I pointed to an alarming number of claims before Services Australia relating to suspected injuries following vaccination with the novel vaccine for Covid19. Subsequent to lodging that submission I came into possession of [the WA report]. This report states its findings, ''were similar to national rates reported to the Therapeutic Goods Administration'' (TGA). The report documents ''adverse events'' following all vaccinations. Covid19 vaccination adverse events totalled over 10,000, resulting in over 8,000 presentations for medical assistance, 961 hospital admissions and 87 deaths. Whereas with traditional vaccinations, an adverse event occurred in 11.1 per 100,000, with Covid vaccines this rose to 263.7 per 100,000. -- 4 of 7 -- 5 [14] Mr Daley relies on the WA report to support a submission that the Director General of Education has 'not done his due diligence' and that had he done so, 'the massive spike in adverse events' would have been acted upon. Respondent's submissions [15] The Respondent opens its submissions by contending that the Commission has, on a number of occasions, found that the direction was both lawful and reasonable. The Respondent further submits that the matters raised by Mr Daley have been considered and determined by the Commission in Mocnik & Others v State of Queensland (Queensland Health) ('Mocnik').1 [16] More specifically, the Respondent submits: • Mr Daley did not provide evidence of a medical contraindication to a COVID-19 vaccine; • there were other vaccines approved by TGA and ATAGI that Mr Daley could have taken if he had concerns about the AstraZeneca vaccine; • the vaccines were approved by TGA and ATAGI which is evidence of their safety and efficacy; • Mr Daley was obliged to comply with reasonable and lawful directions issued to him, including the direction; and • the Respondent complied with its obligations in respect of consultation under the Work Health and Safety Act 2011 (Qld). [17] The Respondent elected not to respond to Mr Daley's submissions dated 18 August 2023. Consideration [18] Mr Daley failed to comply with the direction to be vaccinated against COVID-19. The lawfulness and reasonableness of that direction cannot be disputed.2 Further, at the 1 [2023] QIRC 58. 2 See for example: Mackenzie v State of Queensland (Queensland Health) [2023] QIRC 121; Mocnik & Others v State of Queensland (Queensland Health) [2023] 58; Brasell-Dellow & Ors v State of Queensland (Queensland Police Service) & Ors [2021] QIRC 356; Janulewicz v State of Queensland (Queensland Health) [2023] QIRC 026; Tilley v State of Queensland (Queensland Health) [2022] QIRC 002; Slykerman v State of Queensland (Queensland Health) [2022] QIRC 039; Higgins v State of Queensland (Queensland Health) [2022] QIRC 030; Sunny v State of Queensland (Queensland Health) [2022] QIRC 119; Collins v State of Queensland (Queensland Health) [2022] QIRC 215; Edwards v State of Queensland (Queensland Health) [2022] QIRC 091; Barbagallo v State of Queensland (Queensland Health) [2022] QIRC 195; McPaul v State of Queensland (Queensland Health) [2022] QIRC 175; Knight v State of Queensland (Queensland Ambulance Service) [2022] -- 5 of 7 -- 6 relevant time of Mr Daley's non-compliance throughout 2022, ATAGI continued to recommend vaccination or boosters for adults. In the circumstances, Mr Daley's demands that the Respondent alleviate his personal concerns are misconceived. [19] None of the grounds for non-compliance with the direction that are relied on by Mr Daley could be characterised as novel or unique. They are arguments traversed in this Commission previously and without success. They do not warrant further consideration. [20] Mr Daley was given leave to additionally rely on 'new' evidence in the form of the WA report. Mr Daley remains adamant that the WA report demonstrates unacceptable risk associated with COVID-19 vaccines. On any objective reading of the WA report, Mr Daley's submission is wrong. [21] It is not necessary to descend into a complete analysis of the WA report in these reasons. It is accurate to say the WA report contains data that there were 263.7 adverse events recorded per 100,000 vaccine doses.3 What Mr Daley fails to note is that the WA report defines adverse events to include headaches, fever and muscle ache which are transient events without lasting consequences. [22] To the extent that the WA report deals with the question of adverse reactions and vaccine safety, the summary is instructive:4 This report demonstrates that vaccination with scheduled and influenza vaccines continues to be safe, with little change in AEFI (adverse effects following immunisation) compared to previous years, and with most reactions being minor, with minimal impact on vaccine recipients. Confidence in the surveillance and safety of vaccines was further strengthened by the inclusion of active surveillance data in 2021. The most common AEFI reported for COVID-19 and routine vaccinations were similar; headache, lethargy, myalgia and fever, with the exception of chest pain following Covid-19 mRNA vaccines. The high number of reports following COVID-19 vaccination reflects high engagement from public and health care providers with the monitoring of vaccine safety. The volume of reports allowed rigorous investigation of adverse events. In combination with national and international data, monitoring of AEFI…affected the recommendations by TGA and ATAGI to provide a safer program. (Emphasis added) [23] Contrary to the selective and subjective reading of the WA report relied on by Mr Daley, it actually provides a clear endorsement for the safety of COVID-19 vaccines. The WA QIRC 283; Brown v State of Queensland (Queensland Ambulance Service) [2022] QIRC 312; Godwin v State of Queensland (Queensland Health) [2022] QIRC 240; Lamb v State of Queensland (Queensland Health) [2022] QIRC 237. There are numerous others. 3 Or 0.2673%. 4 WA report, page 28. -- 6 of 7 -- 7 report demonstrates that adverse events are, on the whole, minor and temporary such that the risk associated with vaccination is minimal compared with the benefits to both the recipient and the community. This conclusion is consistent the ongoing recommendation of the World Health Organisation:5 Please remember that the benefits of COVID-19 vaccinations outweigh the risks of getting ill with COVID-19. If you are able to get vaccinated, do not delay it unless advised to by your health care provider. Getting vaccinated could save your life. [24] Mr Daley is entitled to act in accordance with the anxiety he is undoubtedly experiencing in relation to the 'unknowns' surrounding vaccination. He is equally entitled to ignore the overwhelming body of medical and scientific evidence supporting the safety of COVID- 19 vaccinations. But the Commission will make its decisions in reliance on the best evidence available from independent medical and scientific authorities which are all at odds with Mr Daley's opinions. [25] The resources of the Commission have been extensively utilised in hearing and determining various objections by individuals to vaccines mandates and directions. The ground in that area of controversy has been fully covered. It would be an unacceptable waste of resources to continue to hear the same arguments repeatedly. Further, Mr Daley offers nothing new for the Commission to consider. [26] In the circumstances this appeal will not be heard. Order 1. Pursuant to s 562A(3) of the Industrial Relations Act 2016 (Qld) the appeal is dismissed. 5 'Coronavirus disease (COVID-19): Vaccines and vaccine safety', World Health Organization, (Web Page, 28 June 2023) <https://www.who.int/news-room/questions-and-answers/item/coronavirus-disease-(covid-19)- vaccines>. -- 7 of 7 --