Darveniza v State of Queensland (Department of Education) [2024] QIRC 297

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Darveniza v State of Queensland (Department of Education) [2024] QIRC 297 PARTIES: CASE NO: Darveniza, Leesa Chasley (Appellant) & State of Queensland (Department of Education) (Respondent) PSA/2022/851 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 -- 1 of 9 -- 2 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 – consideration of whether to hear the appeal – appeal has no prospects of success – appeal dismissed. LEGISLATION: CASES: 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). Bakhash v State of Queensland (Department of Education [2022] QIRC 362. Carr v State of Queensland (Department of Education) [2024] QIRC 210. Davenport v State of Queensland (Department of Education [2024] QIRC 206. Elliott v State of Queensland (Queensland Health) [2022] QIRC 332. 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. Mocnik v State of Queensland (Queensland Health) [2023] QIRC 58. Nicholson v State of Queensland (Department of Education) [2022] QIRC 271. -- 2 of 9 -- 3 Nuske v State of Queensland (Department of Education) [2023] QIRC 199. 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. Thorley v State of Queensland (Department of Education) [2022] QIRC 133. Reasons for Decision Introduction [1] On 12 September 2022, Ms Leesa Darveniza, employed at that time as an Experienced Senior Teacher at Rangeville State School, filed an appeal against the disciplinary action decision of Ms Anne Crowley (Assistant Director-General, Human Resources, Department of Education). The decision imposes a reduction in remuneration level for 18 weeks and a reprimand. [2] The disciplinary action was imposed due to Ms Darveniza’s failure to receive two doses of a COVID vaccine, leading to the disciplinary finding that she had contravened, without reasonable excuse, a direction. The disciplinary action decision was made after the required steps in the disciplinary process had been concluded. [3] By cl 5 of the Employment Direction 1/22 – COVID-19 Vaccinations dated 10 March 2022 ('the Direction'), Ms Darveniza 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 of 9 -- 4 [4] Ms Darveniza does not dispute she did not comply with the requirements of the Direction even though she had no exemption not to comply. Her key reasons for non-compliance are the vaccines being 'experimental and unsafe' and that her religious beliefs preclude her from taking the vaccine. Additionally, she relies on the standard set of objections to the Direction previously considered and rejected by the Commission on numerous occasions. Proceedings before the Commission [5] The appeal was subject to a callover on 18 April 2024. The Commission noted several decisions dealing with similar matters; including decisions made by the Full Bench; had since been published. Ms Darveniza confirmed she wished to proceed, and directions were issued for submissions regarding the Commission's discretion not to hear the appeal under s 562A(3). [6] The issue before the Commission is whether the appeal should be subject to an exercise of discretion pursuant to s 562A(3)(b) because the appeal is either frivolous or vexatious, misconceived or lacking in substance or should not be heard for another compelling reason. [7] That is the matter subject to this decision. Relevant legislation [8] Section 562A of the Industrial Relations Act 2016 ('IR Act') provides:1 562A Commission may decide not to hear particular public service appeals … (3) The commission may decide it will not her 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. [9] I am satisfied that in accordance with Ch 3 Pt 10 of the Public Sector Act 2022 (Qld), the disciplinary action decision is one that may be appealed against, that Ms Darveniza is entitled to do so, and that the appeal was lodged within the required time.2 There are no issues of standing or other jurisdictional barriers to the appeal proceeding. 1 Emphasis added. 2 Public Sector Act 2022 (Qld) ss 129, 131(1)(c), 133(c); Industrial Relations Act 2016 (Qld) s 564. -- 4 of 9 -- 5 [10] For context, I note Public Sector Appeals are a review of the decision appealed against based on the evidence available and the process followed in coming to the decision. Any findings reasonably open to the decision-maker are not expected to be disturbed on appeal, should the appeal proceed.3 Ms Darveniza's arguments in support of her appeal being heard [11] Ms Darveniza'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 Darveniza does provide particular detail regarding the purported negative consequences (including death) of people known to or related to her following receipt of the vaccine. These key arguments are repeated in her submissions and submissions in reply in this matter which are most directly relevant to the current decision. [12] In summary she states: • She has over 35 years experience as a teacher and a previously unblemished record. • She was unable to find clinical evidence that COVID vaccines were safe. • COVID vaccines were in an 'experimental phase,' and she knew several people who had post-vaccine injuries, including death. • Per her religious beliefs, her body is 'a temple of the Holy Spirit' and her faith precluded her from taking an 'experimental' vaccine. Ms Darveniza cites several passages of the Bible about God being truthful and just. • Her appeal is distinguished from Nuske v State of Queensland (Department of Education)5 as "more and more information about the safety and efficacy of the COVID-19 vaccine is now available in comparison to when those appeals were lodged." The Department argues the appeal should not be heard [13] The Department in summary, argues: • The Direction has been repeatedly found to be lawful and reasonable, and the matters raised by the Appellant have been extensively determined before the 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, [25]-[28]; Sankey v State of Queensland [2024] QIRC 197; Carr v State of Queensland (Department of Education) [2024] QIRC 210. 5 Nuske v State of Queensland (Department of Education) [2023] QIRC 199 ('Nuske'). -- 5 of 9 -- 6 Commission in decisions including Mocnik & Ors v State of Queensland6 and Nuske v State of Queensland.7 • Ms Darveniza's concerns, although genuinely held, amount to vaccine hesitancy. The Commission and the Supreme Court has accepted the expert evidence of Professor Griffin about the effectiveness of the vaccines and the absence of reasonable alternatives to vaccination.8 • Vaccine directions have been repeatedly held by the Commission to be not inconsistent with the Human Rights Act 2016 (Qld). The Appellant's human rights were considered, and in any event the Direction was in the public interest and that outweighed any potential impact on her human rights. • The decision to issue a reduction in pay and reprimand was procedurally fair. Ms Darveniza was placed on notice, provided particulars to support the allegations, and provided an opportunity to respond to the allegation and make submissions in respect of the proposed penalty. • The appeal is not sufficiently unique to warrant expending further resources of the Commission. Should I decline to hear the appeal? [14] It is not disputed that Ms Darveniza 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. [15] 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. [16] 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 6 Mocnik v State of Queensland (Queensland Health) [2023] QIRC 58 ('Mocnik'). 7 Nuske (n 5). 8 Mocnik (n 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 at [452]. 9 Stacey (n 4) at [37]. 10 Ibid, [42]. -- 6 of 9 -- 7 [17] Ms Darveniza's submissions that she has already financially suffered by having been suspended without pay, as a reason to negate the imposition of the further financial penalty, misconceives the difference between the consequences of her own decision to be unvaccinated and the penalty for her conduct of failing to comply with a direction without reasonable excuse. This issue is comprehensively laid out by Dwyer IC in Stacey:11 [49] All of the hardship detailed in Mr Stacey's submissions was not a penalty imposed by the Department for noncompliance. It was a hardship that he imposed in himself and his family through his choice not to 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. [18] Those considerations are relevant here, leading me to also conclude that to the extent Ms Darveniza asserts she has already been punished for her misconduct, she is incorrect. [19] With regards to Ms Darveniza's submissions about 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 Darveniza's religious views, which do not appear to have been raised during the show cause process;14 the Direction does not provide for religious or spiritual exemptions.15 The Commission has not found this to be unreasonable.16 Her religious views, no matter how genuinely held, are not relevant to the appeal. [21] With regards to Ms Darveniza's submissions that the Department's 'one size fits all' approach did not consider the needs of employees as required by the Work Health and 11 n 4. 12 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 (n 6). 14 They are not described in either Ms Darveniza's Show Cause Response on disciplinary finding dated 24 June 2022, or her Show Cause Response on disciplinary action dated 7 August 2022. 15 Nicholson v State of Queensland (Department of Education) [2022] QIRC 271, [40]. 16 Ibid. -- 7 of 9 -- 8 Safety Act 2011 (Qld), this matter was considered by Pidgeon IC in Thorley.17 The Department consulted with its employees to the extent that was reasonably practicable.18 Vaccine hesitancy is not unique [22] Ms Darveniza raises adverse reactions her family and friends have suffered and raises concerns with the safety and efficacy of the COVID vaccine. It is noted by the Department that Ms Darveniza never provided medical evidence or applied for a medical exemption given the experiences of her immediate family. In the absence of certified medical contraindication, these submissions amount to vaccine hesitancy. [23] The Commission has repeatedly scrutinised whether vaccine hesitancy (howsoever described) is a reasonable basis to fail to comply with a lawful and reasonable direction and has found that it is not.19 Furthermore, Ms Darveniza's submission that Rapid Antigen Testing would control the spread of COVID better than a vaccine, even if that was true, does not in any way change that the Direction as it was, was lawful and reasonable. [24] While Ms Darveniza might be correct that there is more information about the safety and efficacy of the COVID-19 vaccine now than there was when Nuske was published, that does not help the Appellant's case as it is not relevant to the disciplinary action decision made at the time that is subject to the substantive appeal. [25] There is nothing unique in the issues being raised by Ms Darveniza not already dispatched by the Commission. Vaccine hesitancy is not a reasonable excuse for failing to comply with the Direction. Conclusion [26] 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 Darveniza have not established an arguable case for the appeal. [27] The arguments in relation to the Direction not being lawful and not consistent with human rights are misconceived for the reasons outlined above, as are the arguments regarding the financial penalty already suffered. Ms Darveniza's concerns regarding adverse reactions amount to vaccine hesitancy, which is not an accepted defence. Her religious objections are also not relevant. Indeed, all of the arguments raised by Ms Darveniza have been considered and dismissed by the Commission on numerous occasions. 17 Thorley (n 12). 18 Ibid, [63]-[66]. 19 See e.g. the authorities set out by Pratt IC in Davenport v State of Queensland [2024] QIRC 206 at [16]-[26]. -- 8 of 9 -- 9 [28] 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. [29] 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. -- 9 of 9 --