Davenport v State of Queensland (Department of Education) [2024] QIRC 206

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Davenport v State of Queensland (Department of Education) [2024] QIRC 206 PARTIES: Davenport, Neil Appellant v State of Queensland (Department of Education) Respondent CASE NO: PSA/2022/776 PROCEEDING: Public Sector Appeal – Disciplinary Decision DELIVERED ON: 22 August 2024 MEMBER: HEARD AT: Pratt IC On the papers ORDER: 1. The appeal is dismissed. 2. The Decision is affirmed. CATCHWORDS: INDUSTRIAL LAW – APPEAL – PUBLIC SECTOR – DISCIPLINARY DECISION – where appellant issued a reprimand and reduction in remuneration – whether appeal should be heard pursuant to section 562A(3)(b) of the Industrial Relations Act 2016 – where appellant is a teacher who failed without reasonable excuse to follow a direction to receive COVID-19 vaccines – where appellant admits to not receiving COVID-19 vaccine but claimed that he had a reasonable excuse for not doing so – consideration of section 562A(3) of the Industrial Relations Act 2016, sections 134 -- 1 of 15 -- 2 and 324 of the Public Sector Act 2022 and section 190 of the Public Service Act 2008 – consideration of the Public Sector Commission – Discipline (Directive 14/20) – where appellant submits his individual circumstances were not adequately considered – where appellant submits he was denied procedural fairness – where respondent submits the appellant's arguments amount to vaccine hesitancy – where respondent submits many of the appellant's arguments have been unsuccessfully raised in other proceedings – where respondent submits that the direction was lawful and reasonable – where respondent submits that appellant was afforded procedural fairness – held that appellant's arguments amounted to vaccine hesitancy – held that direction was lawful and reasonable – held that appellant afforded procedural fairness – held appellant's arguments no different from those raised unsuccessfully in previous proceedings – appeal dismissed LEGISLATION: CASES: Industrial Relations Act 2016 (Qld) s 562A(3) Public Sector Act 2022 (Qld) s 134, s 324 Public Service Act 2008 (Qld) s 190 Allison v State of Queensland (Department of Education) [2022] QIRC 152 Batchelor v State of Queensland (Department of Environment and Science) [2022] QIRC 252 Borough v State of Queensland (Department of Environment and Science) [2022] QIRC 357 Carr v State of Queensland (Department of Education) [2022] QIRC 188 -- 2 of 15 -- 3 Currie (Murray) v State of Queensland (Department of Education) [2022] QIRC 269 Daley v State of Queensland (Department of Education) [2023] QIRC 277 Friis v State of Queensland (Queensland Ambulance Service) [2022] QIRC 360 Galletly v State of Queensland (Queensland Health) [2023] QIRC 40 Gorry v State of Queensland (Department of Education) [2022] QIRC 196 Mackenzie v State of Queensland (Queensland Health) [2023] QIRC 121 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 Sainty v State of Queensland (Queensland Health) (No. 2) [2023] QIRC 78 Schimke v State of Queensland (Department of Education) [2022] QIRC 136 Slykerman v State of Queensland (Queensland Health) [2022] QIRC 39 Tadeo v State of Queensland (Department of Education) [2022] QIRC 177 Thorley v State of Queensland (Department of Education) [2022] QIRC 133 -- 3 of 15 -- 4 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] Mr Neil Davenport ('the Appellant') appeals a disciplinary decision ('the Decision') made and conveyed through email by Ms Anne Crowley, Assistant Director-General, Human Resources, Department of Education on 22 August 2022. The Decision imposed discipline in the form of a reprimand and a reduction in remuneration from ES4-02 to ES4-01 for a period of 18 weeks. The basis of the Decision was the Appellant's failure to comply with the directions pursuant to the Department of Education Employment Direction 1/21 – COVID-19 Vaccinations issued on 15 December 2021 ('Direction 1/21') and Department of Education Employment Direction 1/22 – COVID-19 Vaccinations issued on 10 March 2024 ('Direction 1/22'). Direction 1/21 and Direction 1/22 are, for present purposes, identical and are collectively 'the Direction'. [2] On 18 April 2024, his Honour, Vice President O'Connor, called this matter and several others like it on for directions. After determining that the Appellant wished to proceed with his appeal, his Honour advised that directions would issue requiring the parties to address section 562A of the Industrial Relations Act 2016 ('the IR Act'). The Commission then issued directions on the same day requiring the parties to make submissions as to whether the Commission should refrain from hearing the appeal pursuant to s 562A(3) of the IR Act. [3] I called the matter on for mention on 25 July 2024 and inquired as to whether the Appellant wished to be heard in an oral hearing. The Appellant advised that it was sufficient to have an opportunity at that mention hearing to make a prepared statement on the record, which I allowed. I invited the Respondent to make written submissions in response to that statement by 8 August 2024 and made directions to that effect. The Respondent chose not to respond further, seeking to rely on its submissions already filed. Issue [4] The issue before the Commission is whether the appeal should be the subject of an exercise of discretion by the Commission pursuant to s 562A(3)(b) because the appeal is -- 4 of 15 -- 5 either frivolous or vexatious, misconceived or lacking in substance or should not be heard for another compelling reason. Relevant background [5] The Appellant is a teacher employed by the Respondent, having worked in that capacity without any disciplinary action for almost 24 years. On 15 December 2021, the Respondent issued the Direction. The Direction provided that the Appellant was to receive a first dose of a COVID-19 vaccine by 17 December 2021, the stipulated number of doses of a vaccine by 23 January 2022, and to provide evidence of such vaccination to the Respondent by 24 January 2022. [6] The Appellant did not comply with the Direction. On 10 June 2022, the Respondent issued the Appellant the first show cause notice giving him the opportunity to demonstrate why a disciplinary finding should not be made against him for contravening the Direction without reasonable excuse. The Respondent gave the Appellant 14 days to respond. [7] On 24 June 2022, the Appellant responded to the show cause notice issued on 10 June 2022. The Appellant advised that he had not received the prescribed number of doses of a vaccine and admitted that he did not hold an approved exemption at that time. The Appellant said he did not comply with the direction to be vaccinated because the Respondent had not met its industrial and legislative requirements. Further to this point, the Appellant stated that his reasons for not being vaccinated included his view that a "one size fits all" approach had been taken, that there had been poor communication between him and the Respondent, that his individual needs had not been considered, and that the Respondent had not complied with its consultation obligations. [8] On 1 August 2022, the Respondent issued a second show cause notice. The Respondent advised the Appellant by letter that the allegation that the Appellant had contravened the Direction without reasonable excuse had been substantiated. The proposed discipline for contravening the Direction was a reduction in pay from ES4-02 to ES4-01 for a period of 20 weeks and a reprimand. The Respondent provided the Appellant with 7 days to respond to the proposal of disciplinary action. [9] On 8 August 2022, the Appellant responded to the show cause notice issued on 1 August 2022 arguing that no penalty should be imposed. Primary among the Appellant's arguments was that the Appellant had already been penalised because he had no income while being suspended without pay. He also argued that there were other mitigating circumstances, including his otherwise good track record and the public perception of the disciplinary action. -- 5 of 15 -- 6 [10] On 22 August 2022, the Respondent issued the Decision to reprimand the Appellant and a reduce his pay from ES4-02 to ES4-01 for a period of 18 weeks. The Appellant then lodged this appeal on 9 September 2022. Relevant law Relevant legislation [11] Section 562A(3) of the IR Act relevantly says: (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. [12] Section 190 of the now superseded Public Service Act 2008 ('the Superseded PS Act') said: (1) In disciplining or suspending a public service officer, a chief executive must comply with this Act, any relevant directive of the commission chief executive, and the principles of natural justice. (2) However, natural justice is not required if the suspension is on normal remuneration. [13] The Public Sector Act 2022 ('the PS Act') replaced the Superseded PS Act. The effect of section 324 of the PS Act is that this appeal must be heard and decided under Chapter 3, Part 10 of the PS Act, even though this appeal was brought under now repealed legislation. Hence, pursuant to section 134 of the PS Act, this appeal must be heard and determined in accordance with Chapter 11 of the IR Act. [14] The Public Service Commission – Discipline (Directive 14/20) ('Directive 14/20') has also been superseded by Public Sector Commission – Discipline Directive (05/23). -- 6 of 15 -- 7 However, Directive 14/20 that was operating at the time the Appellant was disciplined. Clause 8.3(a) of Directive 14/20 says:1 The chief executive is to provide the employee with written details of each allegation and invite the employee to show cause why a disciplinary finding should not be made in relation to each allegation (a show cause notice on disciplinary finding)… [15] Furthermore, clause 8.5(a) of Directive 14/20 says:2 The chief executive is to provide the employee with written details of the proposed disciplinary action and invite the employee to show cause why the proposed disciplinary action should not be taken (a show cause notice on disciplinary action)… Relevant cases [16] As the Respondent correctly points out, the Commission has repeatedly scrutinised the Direction as to whether it is a reasonable and lawful direction and has repeatedly found it to be a reasonable and lawful direction.3 [17] In Nuske v State of Queensland (Department of Education) ('Nuske'),4 his Honour, Vice President O'Connor, considered a similar case to the present where the appellant alleged that the respondent had not appropriately considered the appellant's individual circumstances when the respondent disciplined the appellant pursuant to Directive 14/20.5 His Honour considered whether the principles of natural justice were offended by the use of mass mail-outs of template letters to different employees using "mail merge" technology.6 Nuske was concerned with a situation where the respondent, who was the same respondent as the Respondent in this case, disciplined a senior teacher for failing to follow the Direction.7 The respondent disciplined that senior teacher alongside with many other employees who, like the senior teacher, failed to follow the Direction.8 His Honour considered evidence from the same decision-maker as the present case, Ms Crowley, in relation to the same show cause process, carried out at the same time as the Appellant was going through his process.9 His Honour relevantly held that the use of 1 Emphasis added. 2 Emphasis added. 3 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 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. 4 [2023] QIRC 199 ('Nuske'). 5 Ibid [1]-[4]. 6 Ibid [80]-[92]. 7 Ibid [1]. 8 Ibid [3], [26]. 9 Ibid [28]-[31], [41]-[49]. -- 7 of 15 -- 8 mail merge technology or a template letter in addressing like cases did not demonstrate that Ms Crowley's process caused her to overlook individual circumstances.10 His Honour also held that the process did not offend the principles of natural justice and complied with Directive 14/20.11 His Honour further held that the fact that the same penalty was applied to many other employees who had also failed to receive the required vaccination did not render the penalty decision unfair or unreasonable.12 [18] In Slykerman v State of Queensland (Queensland Health),13 Industrial Commissioner Dwyer dealt with arguments that being unvaccinated was not proven to present a higher risk of transmission of COVID-19. Dwyer IC determined that no sound basis existed for such an assertion in the face of the enormous body of evidence to the contrary.14 [19] In Borough v State of Queensland (Department of Environment and Science),15 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.16 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'.17 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.18 [20] In Friis v State of Queensland (Queensland Ambulance Service) ('Friis'),19 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.20 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-19.21 Hartigan IC found that the appellant was hesitant to be administered a COVID-19 vaccine because of those concerns that he held.22 Accordingly, the conclusion was that the basis for refusing to have a COVID-19 vaccine administered was 'vaccine hesitancy'.23 Whilst Hartigan IC concluded that the appellant genuinely held those concerns, and was entitled 10 Nuske (n 4) [49]. 11 Ibid [77], [89]. 12 Ibid [79]. 13 [2022] QIRC 39 ('Slykerman'). 14 Ibid [37]-[39]. 15 [2022] QIRC 357. 16 Ibid [40]. 17 Ibid. 18 Ibid [40]-[41]. 19 [2022] QIRC 360, [32] ('Friis'). 20 Ibid [31]. 21 Ibid [4]. 22 Ibid [34]. 23 Ibid. -- 8 of 15 -- 9 to hold those concerns and express them, the employer was not obliged to accept those views.24 [21] In Batchelor v State of Queensland (Department of Environment and Science) ('Batchelor'),25 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.26 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.27 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.28 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.29 [22] In Sainty v State of Queensland (Queensland Health) (No. 2) ('Sainty'),30 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.31 The appellant also stated that, throughout her life, she had faced serious and dangerous reactions to various medications.32 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.33 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.34 His Honour concluded that the appellant's hesitancy was not a reasonable excuse to fail to comply with the lawful direction to be vaccinated.35 [23] In Winter v State of Queensland (Department of Education),36 his Honour, Deputy President Merrell, considered a case where an employee claimed to be available for work but for a suspension without remuneration.37 The suspension was due to the appellant's 24 Friis (n 19) [35], citing Tilley v State of Queensland (Queensland Health) [2022] QIRC 22 [39]–[42] ('Tilley'). 25 [2022] QIRC 252, [47]. 26 Ibid [5]-[6]. 27 Ibid [47]. 28 Ibid. 29 Ibid [48]-[49]. 30 [2023] QIRC 78. 31 Ibid [6]. 32 Ibid. 33 Ibid. 34 Ibid [15]-[18]. 35 Ibid [18]. 36 [2022] QIRC 350 ('Winter'). 37 Ibid [18]. -- 9 of 15 -- 10 failure to comply with the Direction 1/22.38 His Honour relevantly held that the appellant was not "available for work" as claimed. That was because the appellant exercised a choice to not comply with Direction 1/22. It was a direct result of that choice that the appellant was unavailable for work and therefore was not entitled to be paid.39 [24] In Mackenzie v State of Queensland (Queensland Health) ('Mackenzie'),40 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.41 Relevant cases to s 562A of the IR Act [25] In Tilley v State of Queensland (Queensland Health) ('Tilley'),42 Dwyer IC dealt with a similar case under s 562A of the IR Act. In Tilley, the appellant had been the subject of a similar direction to receive vaccinations and had failed to do so.43 The appellant submitted that she had an arguable case on the basis that she could not give informed consent to receiving the vaccination, that there was a lack of consultation about vaccinations, and that COVID-19 vaccines do not reduce or prevent transmission of COVID-19.44 Dwyer IC observed that the appellant's submissions "traverse[d] familiar propositions that have been considered and dismissed by the Commission on multiple occasions",45 citing numerous examples to support that observation.46 Concluding that the appellant raised arguments that had previously been dealt with numerous times by the Commission, Dwyer IC determined that the matter should not be dealt with and dismissed the matter accordingly.47 [26] In Daley v State of Queensland (Department of Education) ('Daley'),48 Dwyer IC considered a similar case to the one presently before the Commission, as it involved a public service appeal by a senior teacher who also failed to provide evidence of COVID- 38 Winter (n 36) [32]-[33]. 39 Ibid [33] 40 [2023] QIRC 121. 41 Ibid [52] citing Galletly v State of Queensland (Queensland Health) [2023] QIRC 40; Sainty v State of Queensland (Queensland Health) (No.2) [2023] QIRC 78; Borough v State of Queensland (Department of Environment and Science) [2022] QIRC 357. 42 Tilley (n 24). 43 Ibid [1]-[12]. 44 Ibid [14]-[16]. 45 Ibid [15]. 46 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 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; Brailey v State of Queensland (Department of Education) [2022] QIRC 401; Graf and Ors v State of Queensland (Department of Education] [2022] QIRC 451. 47 Tilley (n 24) [34]. 48 [2023] QIRC 277 ('Daley'). -- 10 of 15 -- 11 19 vaccinations in accordance with the Direction.49 The respondent imposed a disciplinary penalty of a reprimand and a reduction in remunerational level for a period of 18 weeks.50 In that matter, the appellant's submissions indicated to the Commission that the case rested on assertions which had been unsuccessfully raised by other appellants before the Commission.51 Those assertions included concerns about the safety and efficacy of COVID-19 vaccines, the possible side effects of blood clotting associated with the AstraZeneca vaccine, the ability to comply with the Direction given the appellant's a claimed medical history, that the vaccines do not prevent transmission of COVID-19, and the inability to give informed consent because the respondent was coercing employees to take a vaccine.52 Dwyer IC observed that none of the grounds relied on by the appellant were unique or novel and had all been put before the Commission without success. Accordingly, the case was deemed to be one that did not warrant further consideration.53 Submissions The appeal notice [27] The Appellant's primary argument in his Form 89 Appeal notice is that his individual circumstances were not adequately considered by the decision-maker. That argument is based upon opinion and belief. The Appellant does not believe that Ms Crowley adequately considered the Appellant's arguments in response to the second show cause notice, if at all. This is because, the Appellant argues, the outcome of his matter was the same as other employees of the Respondent who also did not comply with the Direction. The Appellant further notes that his "email was sent as part of a "mail merge", or automated response sending program". The Appellant also notes that the disciplinary outcome was not a tailored response because his disciplinary outcome was identical to many others. The Appellant argues that a lack of a considered response meant Ms Crowley denied the Appellant natural justice because it was "abundantly clear that the decision maker did not provide reason for the decision that included consideration of any information provided by me". The Appellant's submissions [28] The Appellant first sets out a brief history of his experience as a teacher. The Appellant then submits that, by being "fobbed-off with group emails" during the show cause process, the Respondent denied him the opportunity to use "the art of conversation" to verbally address the proposed discipline and explain his individual circumstances to Ms 49 Daley (n 48) [1]-[8]. 50 Ibid [5]. 51 Ibid [10]-[14]. 52 Ibid. 53 Ibid [19]-[26]. -- 11 of 15 -- 12 Crowley. The Appellant says the lack of two-way verbal engagement caused the Appellant painful mental anguish. [29] The Appellant further submits that his wife, like him, is a teacher who was suspended without pay and disciplined for failing to comply with the Direction. He submits that Ms Crowley should have considered the unique financial predicament of both the Appellant and his wife losing income for failing to comply with the Direction. [30] The Appellant also repeats the argument made in the appeal notice that the similarity between the discipline imposed on him and on others amounts to, as I surmise, a denial of natural justice. [31] The Appellant also argues that the Commission denied him the opportunity to engage in a conversation over the issue because there was no oral hearing of this matter. The Appellant submitted that he had prepared a lot to say to the Commission at a future hearing of the matter. The Appellant also said he "… wanted [his] 14 year old son to stand with me in court as my support person, so that the Commissioner could look into his eyes also, before he makes a decision." The Appellant further submitted that he was disappointed and surprised that the Commission denied him of what he thought was a lawful right to speak on his own behalf. I construed this submission to be a request for an oral hearing on the appeal in addition to the written submissions and subsequently invited the Appellant to make further submissions in a hearing. [32] As noted above, on 25 July 2024, the Appellant made further submissions at a mention hearing. Those submissions largely reiterate many of the complaints the Appellant made in his appeal notice and in his submissions. [33] The Appellant does not squarely address whether I should exercise the discretion under s 562A(3) of the IR Act to not hear the appeal. However, I surmise from the Appellant's submissions that he argues that he has an arguable case because he was denied procedural fairness and did not receive the requisite COVID-19 vaccinations because of concerns about vaccine safety and efficacy. The Respondent's submissions [34] The Respondent submits that the Appellant's arguments amount to nothing more than vaccine hesitancy. The Respondent submits that such matters have already been extensively considered and determined by the Commission. However, the Appellant did not provide medical evidence to the Respondent at the relevant time, or even in this appeal, that would prove that the Appellant was unable to, as opposed to hesitant to, receive an available vaccine. The Respondent also submits that there is no entitlement to a risk assessment.54 54 citing Slykerman (n 13) [35]. -- 12 of 15 -- 13 [35] The Respondent also submits that all the arguments raised by the appellant in this appeal have been previously raised in similar appeals before the Commission without success. Accordingly, the Respondent submits that it is appropriate for the Commission to exercise the discretion under s 562A(3)(b) of the IR Act to refrain from hearing the matter. The Respondent contends that it would not be in the public interest to hear matters that have previously been heard and determined by the Commission or are otherwise misconceived or lacking in substance. [36] In support of those submissions, the Respondent cites the decision of Tilley, setting out Dwyer IC's observations:55 The Commission's resources must be reserved for matters of genuine controversy. They ought not 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 the non-compliance with a lawful direction. [37] The Respondent contends that the Direction has repeatedly been found to be reasonable and lawful in similar circumstances and cites numerous decisions of the Commission in support of that contention. Accordingly, the Respondent submits that the Direction is lawful and reasonable.56 [38] The Respondent further submits that the absence of in-person communication does not equate to a denial of procedural fairness. In support of that argument, the Respondent notes that it is obliged to conduct disciplinary matters in written form.57 The Respondent argues that there was therefore no procedural unfairness in the above-mentioned process. [39] The Respondent further relies on the decision in Nuske because his Honour examined in detail the same decision-making process by the same decision-maker case in substantially the same set of circumstances as the case before me now. The Respondent relies on his Honour's conclusion in Nuske that there was no evidence to support the contention that the process failed to appropriately consider or give weight to individual employees' circumstances. The Respondent further submits that, like the appellant in Nuske, the Appellant was notified about the relevant allegation, and its particulars, and was provided with ample opportunity to respond to the allegation. [40] The Respondent also submits that the Appellant was lawfully suspended without pay by way of letter dated 21 January 2022 on the basis that the Appellant had not complied with the Direction to receive the required vaccinations. The Respondent submits the Appellant was unable to perform work within the school because the Appellant chose not to be vaccinated. Accordingly, the Respondent submits that it was a wilful act of the Appellant 55 Tilley (n 24) [33]. 56 citing Bakhash v State of Queensland (Department of Education) [2022] QIRC 362, [27]. 57 citing Public Service Act 2008, s 190; Public Sector Commission – Discipline (Directive 14/20). -- 13 of 15 -- 14 that made him unavailable for work and that disentitled him from his salary while he was unavailable.58 Consideration [41] I have carefully considered the Appellant's submissions and the arguments advanced by the Respondent in reply. The Appellant submits that he has an arguable case because he was denied procedural fairness and did not receive the requisite COVID-19 vaccinations because of concerns about vaccine safety and efficacy. [42] I agree with the Respondent that the Direction has been repeatedly found to be lawful and reasonable. Accordingly, I find that the Direction is lawful and reasonable. [43] As noted above, in Friis, Hartigan IC found that the appellant's refusal to have the COVID-19 vaccine because he was concerned about the safety of those vaccines amounted to refusal to be vaccinated on the basis of vaccine hesitancy. Hartigan IC held that this vaccine hesitancy did not amount to a reasonable basis for failing to comply with the relevant direction, even though the appellant genuinely held those concerns. In Batchelor, McLennan IC similarly held that fear of suffering adverse reactions to vaccines constituted vaccine hesitancy, and that such fears did not constitute a reasonable excuse for failing to comply with the relevant policy requiring vaccinations in the same manner as the Direction did. [44] In Sainty, his Honour concluded that a lifelong fear of reactions to various medications that caused the appellant to feel the need for an in-depth personal risk assessment before receiving any vaccination also amounted to vaccine hesitancy. His Honour concluded that such reasons did not constitute a recognised medical contraindication from receiving a COVID-19 vaccination. The Full Bench of this Commission in Mackenzie found that this Commission has consistently held that vaccine hesitancy does not constitute a reasonable excuse for failing to comply with an otherwise reasonable and lawful direction. A fear that the vaccines were unsafe or ineffective, even if genuinely held, is simply an explanation as to why the Appellant was hesitant or reluctant to receive a vaccine. Such vaccine hesitancy has been repeatedly held by this Commission to not constitute a reasonable basis for failing to follow the Direction. As such, the Appellant's vaccine hesitancy cannot succeed as ground of appeal. [45] The Appellant relies on the template letter and mail merge, as well as the similarity between the discipline he and his wife received, to argue that Ms Crowley denied the Appellant procedural fairness by overlooking the Appellant's unique circumstances. The Commission has dealt with this procedural fairness argument before. In Nuske, for example, it was determined that the use of mail merge technology and a template letter for dealing with discipline for employees with like cases did not amount to a denial of 58 citing Winter (n 36) [33]. -- 14 of 15 -- 15 natural justice. There is no substantial difference between the procedure in Nuske and the procedure here. I therefore conclude that the issue has been determined before in this Commission and there is no utility in hearing that same argument again. [46] The Appellant argues that his unique financial circumstances were overlooked. He points to the period of suspension without pay and the fact that he and his wife were disciplined as evidence of unique financial circumstances. However, the Direction clearly stated that all Department of Education workers whose role requires any attendance in a high-risk setting, which includes schools, must have received the stipulated doses of a vaccine by the stipulated dates. The Appellant was such a worker. That is not in issue. His role as a teacher required his attendance in a high risk setting. That is also not in issue. It was therefore a choice exercised by the Appellant to decline to be vaccinated, and that choice resulted in his being unable to work within a school. In those circumstances there was no entitlement to salary. The fact that other employees also exercised such a choice and were also suspended without pay does not mean the Appellant's individual circumstances were not considered. [47] As to the lack of in-person communication, I accept the Respondent's submissions that it was required to correspond in writing with the Appellant in relation to matters of discipline. It was a thorough process that gave the Appellant ample opportunity to know and respond to the allegations and the proposed discipline. This very process has been considered and ruled appropriate by the Commission in the past. Even if it had not, it is clear on the Appellant's own materials that this allegation is without substance. [48] Having considered the Appellant's arguments, I find that all of them have been comprehensively dealt with by this Commission previously. In all of those cases, each of the relevant appellant's arguments was unsuccessful. Noting the observations by Dwyer IC in Daley and in Tilley, with which I respectfully agree and adopt, I conclude that it would not be in the public interest to hear this matter. I also conclude that the circumstances I have set out above constitute a compelling reason not to hear the appeal. Accordingly, I have determined not hear the matter. Order 1. The appeal is dismissed. 2. The Decision is affirmed. -- 15 of 15 --