Allison v State of Queensland (Department of Education) [2024] QIRC 263

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Allison v State of Queensland (Department of Education) [2024] QIRC 263 PARTIES: Allison, Julie (Appellant) v State of Queensland (Department of Education) (Respondent) CASE NO: PSA/2022/906 PROCEEDING: Public Sector Appeal – Disciplinary Decision DELIVERED ON: 13 November 2024 MEMBER: McLennan IC HEARD AT: On the papers ORDERS: Pursuant to s 562A(3) of the Industrial Relations Act 2016, the appeal will not be heard. CATCHWORDS: PUBLIC SECTOR – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – PUBLIC SECTOR APPEAL – appeal against disciplinary decision – where the appellant did not comply with Employment Direction 1/21 – COVID- 19 Vaccinations – consideration under section 562A(3) of the Industrial Relations Act 2016 (Qld) whether to decline to hear appeal – where the appeal will not be heard LEGISLATION AND INSTRUMENTS: Industrial Relations Act 2016 (Qld) s 562A, s 562B Public Sector Act 2022 (Qld) s 324 COVID-19 Vaccination Requirements for Workers in a high-risk setting Direction -- 1 of 15 -- 2 Department of Education Employment Direction 1/21 – COVID-19 Vaccinations CASES: Allison v State of Queensland (Department of Education) [2022] QIRC 152 Bailey v State of Queensland (Department of Education) [2024] QIRC 218 Bakhash v State of Queensland (Department of Education) [2022] QIRC 362 Carr v State of Queensland (Department of Education) [2022] QIRC 188 Carr v State of Queensland (Department of Education) [2024] QIRC 210 Currie (Murray) v State of Queensland (Department of Education) [2022] QIRC 269 Donaldson v State of Queensland (Department of Education) [2024] QIRC 239 Elliott v State of Queensland (Queensland Health) [2022] QIRC 332 Friis v State of Queensland (Queensland Ambulance Service) [2022] QIRC 360 Gatongi v State of Queensland (Department of Education) [2024] QIRC 233 Gorry v State of Queensland (Department of Education) [2022] QIRC 196 Graf and Ors v State of Queensland (Department of Education] [2022] QIRC 451 Gundrum v State of Queensland (Queensland Health) [2022] QIRC 226 -- 2 of 15 -- 3 Huntington v State of Queensland (Queensland Health) [2022] QIRC 290 Isabella Stevens v Epworth Foundation [2022] FWC 593 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 & Ors v State of Queensland (Queensland Health) [2023] QIRC 058 Nicholas v State of Queensland (Department of Education) [2022] QIRC 157 Nuske v State of Queensland (Department of Education) [2023] QIRC 199 Prentis v State of Queensland (Department of Education) [2022] QIRC 212 R v The Darling Island Stevedoring and Lighterage Company Limited; Ex parte Halliday and Sullivan (1938) 60 CLR 60 Radanovic v State of Queensland (Department of Education [2024] QIRC 225 Sankey v State of Queensland (Department of Education) [2024] QIRC 197 Schimke v State of Queensland (Department of Education) [2022] QIRC 136 Stacey v State of Queensland (Department of Education) [2024] QIRC 220 -- 3 of 15 -- 4 Steenson v State of Queensland (Department of Education) [2024] QIRC 242 Sturgess v State of Queensland (Department of Education) [2024] QIRC 236 Tadeo v State of Queensland (Department of Education) [2022] QIRC 177 Thorley v State of Queensland (Department of Education) [2022] QIRC 133 Thorley v State of Queensland (Department of Education) [2024] QIRC 026 Tilley v State of Queensland (Queensland Health) [2023] QIRC 262 Tribe v State of Queensland (Department of Education) [2022] QIRC 203 Winter v State of Queensland (Department of Education) [2022] QIRC 350 Reasons for Decision [1] On 16 September 2022, Ms Julie Allison (the Appellant) filed an appeal of the disciplinary decision made by Ms Anne Crowley, Assistant Director-General, Human Resources, Department of Education (the Department; the Respondent) to impose the disciplinary action of a reduction in remuneration from a Senior Teacher A03-04 to a Teacher B03-04, for a period of 18 weeks (at which time Ms Allison would automatically revert to her previous increment) and a reprimand (the Disciplinary Action Decision). [2] The disciplinary action was imposed in relation to Ms Allison's failure to receive two doses of a COVID-19 vaccine. Background [3] Ms Allison is employed as a Senior Teacher based at Coomera State School. [4] On 11 December 2021, the COVID-19 Vaccination Requirements for Workers in a high- risk setting Direction, issued by the Chief Health Officer (the CHO Direction) commenced operation. Under the CHO Direction, workers were not permitted to enter, -- 4 of 15 -- 5 remain in, work in, or provide services in a high-risk setting unless they were fully vaccinated.1 A 'high-risk setting' was defined as early childhood, primary and secondary educational settings, including schools.2 [5] On 16 December 2021, the Department of Education Employment Direction 1/21 – COVID-19 Vaccinations (the Direction)3 was released, which required Ms Allison to receive or provide evidence of receiving two doses of a COVID-19 vaccination. [6] The Direction relevantly provided (emphasis added): 3. Purpose In recognition of the high risk of transmission of the COVID-19 virus, for the protection of vulnerable persons and that a sudden reduction in available workforce would significantly affect the continuity of education services (among others) on Saturday 11 December 2021 the COVID-19 Vaccination Requirements for Workers in a high-risk setting Direction | Queensland Health (CHO Direction) was published re vaccination of workers in high-risk settings including: • schools and outdoor education facilities; • other education facilities, including TAFE, that are co-located with a school; • outside school hours care and vacation care; and • kindergartens, registered and licensed early childhood settings and family day-care providers. The purpose of this direction is to outline the COVID-19 vaccination requirements for existing and prospective Department of Education workers (excluding OIR) who attend a high-risk setting as part of their role or the services they provide. 4. Application The CHO Direction captures many Department of Education workers (excluding OIR) as the CHO direction applies to all workers in a high-risk setting and prevents entry to a high- risk setting unless the worker complies with the COVID-19 vaccination requirements with some very limited exceptions. This Direction applies to all Department of Education workers who attend a high-risk setting as part of their role or the services they provide. This Direction also applies to identified staff within regional and central offices who are required to be present in a school as part of their work duties, i.e. where attendance at a school is necessary to fulfil the requirements of their job. [7] Specifically, under cl 5 of the Direction Ms Allison was required to: • Have received the prescribed number of doses of a COVID-19 vaccine by 11:59pm AEST on 23 January 2022;4 and 1 COVID-19 Vaccination Requirements for Workers in a high-risk setting Direction, cl 9. 2 Ibid, sch 1 (definition of 'High-risk setting') and sch 2. 3 Effective from 15 December 2021. In March 2022 the Director General issued Employment Direction 1/22 - COVID 19 Vaccinations. The requirement to receive two doses of a COVID-19 vaccine did not change. The Direction was revoked effective on 30 June 2022. 4 Department of Education Employment Direction 1/21 – COVID-19 Vaccinations cl 5(c). -- 5 of 15 -- 6 • As soon as reasonably practicable and in any event before attending a high-risk setting on 24 January 2022, show evidence of having received the prescribed number of COVID-19 vaccines in line with cl 6 of the Direction.5 [8] Ms Allison did not comply with the Direction, given that she did not receive or provide evidence of receiving two doses of a COVID-19 vaccination. [9] On 27 January 2022, Ms Rynell Hastie-Burroughs, Executive Director, Business Partnering and Engagement, wrote to Ms Allison informing her of her decision to suspend her without pay.6 [10] On 28 July 2022, Ms Crowley wrote to Ms Allison inviting her to respond to the Allegation that she had contravened, without reasonable excuse, the Direction to receive the prescribed doses of a COVID-19 vaccine and/or show evidence of receiving same.7 Ms Allison responded to the show cause on 9 August 2022.8 [11] On 30 August 2022, Ms Crowley advised Ms Allison she had found the Allegation was substantiated. Ms Allison was afforded seven days to respond to the proposed penalty of a reduction in remuneration, from AO3-04 to BO3-04, for a period of 20 weeks, at which time she would automatically revert to her previous increment, and a reprimand (the Disciplinary Finding Decision). Ms Allison responded to the second show cause notice on 2 September 2022. [12] On 9 September 2022, Ms Crowley advised Ms Allison of the Disciplinary Action Decision to apply a reduction of remuneration from a Senior Teacher A03-04 to a Teacher B03-04, for a period of 18 weeks (at which time Ms Allison would automatically revert to her previous increment) and a reprimand. Jurisdiction [13] Ms Allison filed her appeal under the Public Service Act 2008 (Qld) which was repealed by the Public Sector Act 2022 (Qld) (the PS Act) on 1 March 2023. [14] Section 324 of the PS Act provides: 324 Existing appeal (1) This section applies if — (a) before the commencement, a person appealed against a decision under the repealed Act, section 194; and (b) immediately before the commencement, the appeal had not been decided. 5 Ibid cl 5(d). 6 Respondent's submissions filed 31 May 2024, [5]. 7 Ibid [6]. 8 Ibid [7]. -- 6 of 15 -- 7 (2) From the commencement, the appeal must be heard and decided under chapter 3, part 10. [15] Immediately before the commencement of the PS Act, Ms Allison's appeal against the Disciplinary Action Decision had not been decided. The appeal is now to be decided under ch 3 pt 10 of the PS Act. [16] A public sector appeal is conducted by way of 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.9 [17] It does not involve a re-hearing of the matter 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. Relevant Principles [18] Section 562A of the Industrial Relations Act 2016 (IR Act) provides (emphasis added): 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 – … (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. Submissions The Appellant [19] The Appellant's submissions are briefly summarised below: • The Department was required to conduct a risk assessment under the applicable legislation and one was not provided to Ms Allison. • Ms Allison submits the Direction is unlawful and this appeal should be heard because:10 9 Industrial Relations Act 2016 (Qld) s 562B. 10 The Appellant's submissions filed 10 May 2024, [4]. -- 7 of 15 -- 8 The lawfulness of the Direction has not been "fully tested in precedent cases"; The Direction did not follow the legal instrument relied upon to make the Direction, which is the CHO Direction dated 11 December 2021; The Department was aware of the risks associated with the vaccine and knowingly exposed workers to that risk; With reference to the decision in Johnston & Ors v Carroll,11 the Department "did not meet its legal obligations" prior to issuing the Direction; The Department mandated vaccination before the CHO Direction and union consultation.12 • The precedent for the lawfulness of the Direction in Thorley v State of Queensland (Department of Education) ('Thorley')13 was determined on insufficient evidence and the CHO Direction had not been assessed in full.14 • In Thorley15 and other precedent cases, none have tested the "Guidance" in the CHO Direction.16 • Ms Allison is seeking to test the sections of the Work Health and Safety Act 2011 (Qld) (WHS Act) and the Work Health and Safety Regulation 2011 (Qld) (WHS Regulation) that were untested in Thorley17 and Mocnik & Ors v State of Queensland,18 as well as challenging the disciplinary finding which was untested in Nuske v State of Queensland (Department of Education).19 • It was reasonably practicable for the Department to be aware of the potential harm of the vaccine and assess it under the CHO Direction.20 The Respondent [20] In summary, the Respondent submitted: • The Direction has repeatedly been found to be lawful and reasonable.21 11 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. 12 Appellant's submissions filed 10 May 2024, [4]e, [21]-[23]. 13 [2022] QIRC 133. 14 Appellant's submissions filed 10 May 2024, [6]. 15 Thorley v State of Queensland (Department of Education) [2022] QIRC 133. 16 Appellant's submissions filed 10 May 2024, [7]. 17 Thorley v State of Queensland (Department of Education) [2022] QIRC 133. 18 [2023] QIRC 58. 19 [2023] QIRC 199; Appellant's submissions filed 10 May 2024, [9]-[10]. 20 Appellant's submissions filed 10 May 2024, [18]. 21 Respondent's submissions filed 31 May 2024, [12], citing cases such as Schimke v State of Queensland (Department of Education) [2022] QIRC 136; Allison v State of Queensland (Department of Education) [2022] QIRC 152; Nicholas v State of Queensland (Department of Education) [2022] QIRC 157; Tadeo v State of -- 8 of 15 -- 9 • The Commission has repeatedly confirmed the seriousness of an employee's failure to comply with a reasonable direction from their employer.22 • Ms Allison did not have a reasonable excuse for her failure to comply with the Direction and her reason for non-compliance included her personal belief that vaccines are harmful.23 • The Commission has confirmed there is no entitlement to a risk assessment, noting the vaccines are approved by the TGA and ATAGI.24 • The matters raised by Ms Allison have been extensively determined before the Commission in decisions including Mocnik & Ors v State of Queensland25 and Nuske v State of Queensland (Department of Education).26 • The appeal does not warrant expending further resources of the Commission, as the matters raised have been previously heard and determined. • Ms Allison's argument that the Direction has not been assessed sufficiently as lawful in previous cases such as Thorley,27 relies on whether the Department discharged its legal obligations to conduct a proper risk assessment and consultation, where there was no requirement to individually consult employees, and employees were communicated with at various intervals prior to the Direction being enacted.28 • A direction issued by an employer does not require a positive statement of law to be endorsing it, meaning that Ms Allison's submissions regarding the CHO Direction are immaterial to the Direction's lawfulness.29 • The Disciplinary Action Decision was demonstrably justified because it was in the public interest to ensure employees of the Department comply with lawful and Queensland (Department of Education) [2022] QIRC 177; Carr v State of Queensland (Department of Education) [2022] QIRC 188; Gorry v State of Queensland (Department of Education) [2022] QIRC 196; Tribe v State of Queensland (Department of Education) [2022] QIRC 203; Prentis v State of Queensland (Department of Education) [2022] QIRC 212; Currie (Murray) v State of Queensland (Department of Education) [2022] QIRC 269. 22 Respondent's submissions filed 31 May 2024 [12], citing Huntington v State of Queensland (Queensland Health) [2022] QIRC 290 [54]; Bakhash v State of Queensland (Department of Education) [2022] QIRC 362 [27]. 23 Respondent's submissions filed 31 May 2024, [14]. 24 Friis v State of Queensland (Queensland Ambulance Service) [2022] QIRC 360 [36]. 25 [2023] QIRC 58. 26 [2023] QIRC 199. 27 Thorley v State of Queensland (Department of Education) [2022] QIRC 133. 28 Respondent's submissions filed 31 May 2024, [19]. 29 Ibid [20]. -- 9 of 15 -- 10 reasonable directions which outweighed the potential impact on Ms Allison's human rights.30 • The Commission has consistently found vaccine directives are not inconsistent with the Human Rights Act 2019 (Qld).31 [21] The Respondent submitted that the Commission should exercise its discretion under s 562A(3)(b) of the IR Act, on the basis that it is not in the public interest to hear Ms Allison's appeal as the matters she has raised have previously been heard and determined by the Commission or are otherwise misconceived or lacking in substance. The Respondent cites Tilley v State of Queensland (Queensland Health)32 a recent decision of the Commission on this matter, which relevantly states: [33] The Commission's resources must be reserved for matters of genuine controversy. They ought not to be made available to unreasonable individuals who, despite overwhelming legal precedent and accepted mainstream medical and scientific opinions, insist on arguing (and re-arguing) the same tedious points in a vain attempt to have their baseless views affirmed, or to delay the inevitable sanctions awaiting them for their non-compliance with a lawful direction. Consideration [22] It is not in dispute that Ms Allison failed to comply with the Direction to be vaccinated. With respect to Ms Allison's submissions seeking to disturb the Disciplinary Finding Decision by filing this appeal, ordinarily, if I were to go on and hear the appeal, the approach I would take is that the Appellant ought to have known there is a 21-day time limit within which they need to file an appeal against a Disciplinary Finding Decision. That is because the Respondent's Disciplinary Finding Decision correspondence usually makes that clear, in the section addressing 'Appeal rights'. That was not the case here where Ms Allison was informed that she had a right to appeal that finding (emphasis added): Appeal entitlements If you believe that my decision to find that the allegation above is substantiated (disciplinary finding decision) is unfair and unreasonable, you may lodge a fair treatment appeal under the appeal provisions of the Public Service Act 2008. Alternatively, you may decide to wait until I have made a decision about the proposed disciplinary action and appeal both the disciplinary finding and the disciplinary action. [23] Noting that this decision is only related to whether this appeal ought to be heard by the Commission, I will address the relevant matters raised by Ms Allison which seek to disturb the Disciplinary Finding Decision, on the basis that the Respondent incorrectly advised Ms Allison that both decisions can be combined in the same appeal. 30 Ibid [22]. 31 Ibid [22], citing Bakhash v State of Queensland (Department of Education) [2022] QIRC 362; Mocnik & Ors v State of Queensland (Queensland Health) [2023] QIRC 058. 32 [2023] QIRC 262. -- 10 of 15 -- 11 [24] I have carefully considered Ms Allison's submissions and reviewed the relevant attachments. I have not approached this decision by summarising the entirety of those arguments and attachments, however I have had regard to them in determining not to hear this appeal. [25] Ms Allison has not raised any unique or novel arguments that would lead to the inference that she has an arguable case as to why the Disciplinary Finding Decision or Disciplinary Action Decision was unfair or unreasonable. The matters contained within Ms Allison's submissions have been the subject of numerous appeals before this Commission and have relevantly been dismissed. Other arguments Ms Allison has attempted to raise, are entirely misconceived. [26] Ms Allison argues that her appeal ought to be heard as the Direction has not been sufficiently assessed as lawful in previous cases, making specific reference to the case of Thorley.33 In the case of Thorley,34 Ms Allison contended the Direction was only "superficially tested".35 Ms Allison submitted that the cases cited by the Respondent giving lawful authority to the Direction either cite Thorley36 "and/or accept the lawfulness of the direction",37 and none have tested the guidance section of the CHO Direction which states (emphasis added): This public health direction applies to workers who enter, work in, or provide services in a high- risk setting. The direction defines how a high-risk setting is identified by the Chief Health Officer and specifies the COVID-19 vaccination requirements and related obligations for workers and employers operating in a high-risk setting. The direction recognises that an employer may mandate vaccination for employees, where otherwise permitted at law, based on the requirements of a role. [27] I do not agree with Ms Allison, that the lawfulness of the Direction requires more consideration by this Commission. [28] Ms Allison's argument to dispute the lawfulness of the Direction is that the Department did not discharge its legal obligations to conduct a proper risk assessment and consultation, as required under the WHS Act. To support this point, Ms Allison referred to and attached documents she received through a Right to Information Request relating to the meetings held between the Department and the unions on 6 December 2021 and 8 December 2021. I have reviewed the 19 documents submitted by Ms Allision38 and do not consider that they prove Ms Allison's allegations, that the Department did not consult with the unions as required under the applicable legislation. It appears that Ms Allison's primary argument to support this assertion is that the documents she chose to supply fail to mention "Workplace Health and Safety or the known hazard risk of the vaccine".39 33 Thorley v State of Queensland (Department of Education) [2022] QIRC 133. 34 Ibid. 35 Appellant's submissions in reply filed 12 June 2024, [4]. 36 Thorley v State of Queensland (Department of Education) [2022] QIRC 133. 37 Appellant's submissions in reply filed 12 June 2024, [4]. 38 Of the 103 documents that were supplied to Ms Allison. 39 Appellant's submissions filed 10 May 2024, [22]a. -- 11 of 15 -- 12 The other points raised by Ms Allison concerning the significance of these documents are unfounded in my view. This Commission has already addressed the Department's consultation obligation extensively and it does not warrant further consideration. [29] Ms Allison's submissions regarding consultation, risk assessment and vaccine efficacy to dispute the lawfulness of the Direction are misconceived and contrary to the well- established authorities delivered by this Commission.40 As found by Industrial Commissioner Power in Tadeo v State of Queensland (Department of Education),41 the Department met its consultation obligation by consulting with the relevant registered unions representing affected employees. [30] With respect to Ms Allison's argument regarding not receiving a "risk assessment", it has 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."42As further noted by Industrial Commissioner Dwyer in Gundrum v State of Queensland (Queensland Health),43 "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."44 [31] In Elliott v State of Queensland (Queensland Health),45 Industrial Commissioner Dwyer made the following observations in relation to such arguments that have previously been heard and determined before this Commission (citations omitted): [29] The commission has now dealt with a great many appeals of this nature. Consequently, a reliable body of jurisprudence has been developed dealing with increasingly common themes in the arguments advanced by appellants like Ms Elliott, who have not complied with a vaccine mandate applicable in their respective departments of employment. [30] Notwithstanding that these decisions are available publicly on the Queensland Courts website, appellants continue to file these appeals challenging the validity of directions for them to be vaccinated and relying on arguments such as 'vaccines are not safe' or 'mandates are coercion' or 'human rights infringements' or 'risk assessments were not provided' or 'consultation did not occur' et cetera. [31] It is more than apparent that the vast majority of such appellants have no regard for the reported decisions or if they do, they simply press on, expecting that somehow the outcome will be different in their case. With the exception of a small number of decisions returned to 40 See eg Nicholas v State of Queensland (Department of Education) [2022] QIRC 157; Tadeo v State of Queensland (Department of Education) [2022] QIRC 177; Carr v State of Queensland (Department of Education) [2022] QIRC 188; Gorry v State of Queensland (Department of Education) [2022] QIRC 196; Tribe v State of Queensland (Department of Education) [2022] QIRC 203; Prentis v State of Queensland (Department of Education) [2022] QIRC 212; Currie (Murray) v State of Queensland (Department of Education) [2022] QIRC 269; Graf and Ors v State of Queensland (Department of Education] [2022] QIRC 451. 41 [2022] QIRC 177. 42 Gundrum v State of Queensland (Queensland Health) [2022] QIRC 226, [38]. 43 [2022] QIRC 226. 44 Ibid. 45 [2022] QIRC 332. -- 12 of 15 -- 13 departments for technical inadequacies, no appellant has succeeded on the increasingly tedious suite of arguments of this nature. [32] The continued use of the commission's resources to receive and repeatedly dispense with the same arguments cannot be in the public interest. In circumstances where there is now a reliable body of decisions dispensing with similar arguments, it is my view that appellants seeking to reagitate settled arguments should be required to justify why they ought to be heard. [32] Ms Allison contends that her matter is one of "genuine controversy as [she] is testing parts of the WHS ACT and WHS Regulation untested in the precedent cases" and that she is "more fully testing the lawfulness of the Direction given the full CHO Direction".46 [33] The Commission has extensively dealt with matters arising under the WHS Act and WHS Regulation with respect to the Direction and directions of a very similar nature pertaining to other departments. Further, Ms Allison's arguments about the CHO Direction are immaterial to the question of the lawfulness of the Direction. I accept the Respondent's submission in this case, that a direction issued by an employer does not require a positive statement of law to be endorsing it, rather, it must reasonably fall within the scope of service.47 The Direction did not involve 'illegality' and related to matters of employment. Consequentially, Ms Allison was reasonably expected to comply with it. [34] Ms Allison further argued that the CHO Direction does not mandate vaccination to employees, as the CHO Direction says that nothing prevents a worker who does not meet the vaccination requirements from entering or using the services of a high-risk setting as a visitor. Ms Allison submitted that this "clearly shows the Department has every obligation to assess the known hazard risk of the vaccine because the CHO Direction does not fully exclude unvaccinated workers from the workplace".48 These submissions again go to Ms Allison's assertion of the Department's failure to undertake a risk assessment, as she submits that any "basic risk assessment would show the ineffective nature of the Departments Direction" because statistically, there are more parents, caregivers, siblings, and visitors (who are presumably unvaccinated) than there are teachers. Ms Allison's views regarding what any risk assessment may or may not contain, based on her own personal beliefs pertaining to the efficacy of the Direction, are unfounded and have no bearing on this appeal. [35] I do not accept that Ms Allison has submitted any "reasonable excuse" for failing to comply with the Direction. Ms Allison's "reasonable excuse" is that the Direction is unlawful. That is not the case. It is well-established that the Direction was lawful and reasonable.49 It is also well-established that failure to comply with a lawful and 46 Appellant's submissions in reply filed 12 June 2024, [9]. 47 R v The Darling Island Stevedoring and Lighterage Company Limited; Ex parte Halliday and Sullivan (1938) 60 CLR 60. 48 Appellant's submissions file 10 May 2024, [15]. 49 Winter v State of Queensland (Department of Education) [2022] QIRC 350; Thorley v State of Queensland (Department of Education) [2022] QIRC 133; Schimke v State of Queensland (Department of Education) [2022] QIRC 136; Allison v State of Queensland (Department of Education) [2022] QIRC 152; Nicholas v State of Queensland (Department of Education) [2022] QIRC 157; Tadeo v State of Queensland (Department of -- 13 of 15 -- 14 reasonable direction is a serious act of insubordination and failing any compelling mitigating factors, would justify termination of employment.50 [36] While Ms Allison has expressed a view that vaccines are harmful, the COVID-19 vaccinations have been approved for use through the Therapeutic Goods Administration approval process and the Australian Technical Advisory Group on Immunisation. The TGA's approval of relevant vaccines is a matter of public record and is evidence of their safety and efficacy.51 I accept that the Respondent adhering to such advice is reasonable and appropriate. [37] As the Direction's lawfulness and reasonableness cannot be disputed, it is inevitable that Ms Allison would be sanctioned for failing to comply with it. [38] There is no material before me that would cause me to depart from the Vice President's ruling in Nuske v State of Queensland (Department of Education)52 as to the fairness and reasonableness of the Disciplinary Action Decision. [39] I note recent occasions where the Commission has considered appeals similar to Ms Allison's and determined to exercise the discretion afforded by s 562A(3) of the IR Act not to hear the appeal.53 [40] With reference to the observations of Industrial Commissioner Dwyer in Tilley v State of Queensland (Queensland Health),54 the Commission's resources "must be reserved for matters of genuine controversy".55 Those resources must not be used re-agitating arguments that have been already exhaustively dealt with, and on each occasion deemed unmeritorious, by the Commission. Ms Allison has not highlighted any matters that have not already been heard and determined by this Commission and it would be a waste of the Commission's resources to hear this appeal. [41] For the reasons above, I am not satisfied there is a compelling reason to hear the appeal. Education) [2022] QIRC 177; Carr v State of Queensland (Department of Education) [2022] QIRC 188; Gorry v State of Queensland (Department of Education) [2022] QIRC 196; Tribe v State of Queensland (Department of Education) [2022] QIRC 203; Prentis v State of Queensland (Department of Education) [2022] QIRC 212; Currie (Murray) v State of Queensland (Department of Education) [2022] QIRC 269. 50 Thorley v State of Queensland (Department of Education) [2024] QIRC 026, [15]. 51 Isabella Stevens v Epworth Foundation [2022] FWC 593 [19]. 52 [2023] QIRC 199. 53 Sankey v State of Queensland (Department of Education) [2024] QIRC 197; Carr v State of Queensland (Department of Education) [2024] QIRC 210; Bailey v State of Queensland (Department of Education) [2024] QIRC 218; Stacey v State of Queensland (Department of Education) [2024] QIRC 220; Radanovic v State of Queensland (Department of Education [2024] QIRC 225; Gatongi v State of Queensland (Department of Education) [2024] QIRC 233; Sturgess v State of Queensland (Department of Education) [2024] QIRC 236; Donaldson v State of Queensland (Department of Education) [2024] QIRC 239; Steenson v State of Queensland (Department of Education) [2024] QIRC 242. 54 [2023] QIRC 262. 55 Ibid [33]. -- 14 of 15 -- 15 [42] I order accordingly. Order Pursuant to s 562A(3) of the Industrial Relations Act 2016, the appeal will not be heard. -- 15 of 15 --