Bakhash v State of Queensland (Department of Education) [2022] QIRC 362

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Bakhash v State of Queensland (Department of Education) [2022] QIRC 362 PARTIES: Bakhash, Peter (Appellant) v State of Queensland (Department of Education) (Respondent) CASE NO: PSA/2022/696 PROCEEDING: Public Service Appeal – appeal against disciplinary decision DELIVERED ON: 16 September 2022 MEMBER: Dwyer IC HEARD AT: On the papers ORDER: 1. Pursuant to s 562A(3) of the Industrial Relations Act 2016 (Qld), I decline to hear the Appellant's appeal against the decision. CATCHWORDS: INDUSTRIAL LAW - PUBLIC SERVICE – appeal – appeal against disciplinary decision - where appellant employed by the State of Queensland as a Teacher – where Employment Direction 1/22 – COVID-19 Vaccinations ('the direction') required the appellant to receive the first vaccination dose by 17 December 2021 and the second dose by 23 January 2022 – where appellant failed to comply with the direction – decision issued substantiating allegation of failing to comply with the direction without a reasonable excuse – decision issued indicating consideration is -- 1 of 8 -- 2 LEGISLATION: being given to reducing the appellant's renumeration for a period of 20 weeks – appeal notice indicates non-compliance reasons 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 Industrial Relations Act 2016 (Qld) s 562A Public Service Act 2008 (Qld) s 137 Employment Direction 1/22 – COVID 19 Vaccination Direction 16/20, Suspension Direction cl 6, 7, 8 Human Rights Act 2019 (Qld) s 13 CASES: Brasell-Dellow & Ors v State of Queensland, (Queensland Police Service) & Ors [2021] QIRC 356 Elliott v State of Queensland (Queensland Health) [2022] QIRC 332 Reasons for Decision Background [1] Mr Peter Bakhash ('Mr Bakhash') is permanently employed by the Department of Education ('the department') as an Experienced Senior Teacher at Chatsworth State School. [2] On 11 December 2021, the Chief Health Officer issued the Covid-19 Vaccination Requirements for Workers in a high-risk setting Direction. The Department subsequently issued the Employment Direction 1/22 – COVID 19 Vaccination ('the direction'). It is not controversial that Mr Bakhash was subject to the direction and did not comply with that direction. -- 2 of 8 -- 3 [3] On 3 August 2022, Mr Bakhash filed an appeal notice, appealing the decision of the department dated 1 August 2022. The decision substantiates the allegation that Mr Bakhash contravened clause 5 of the direction without reasonable excuse and indicates that consideration is being given to reduce Mr Bakhash's renumeration for a period of 20 weeks. [4] Mr Bakhash also requests a stay of proceedings in his appeal notice, as well as contending that the direction violates many of his personal rights, as well as rights pursuant to acts and regulations.1 The department indicated they would stay the disciplinary proceedings, pending the outcome of the appeal.2 [5] Having read the material Mr Bakhash submitted with his appeal notice, I called the matter on for a mention. On 11 August 2022, a mention was held. At the mention I raised that this Commission has made a great number of decisions relating to appeals in similar circumstances to that of Mr Bakhash.3 [6] In those circumstances I advised Mr Bakhash that I was giving consideration to exercising my discretion pursuant to s 562A of the Industrial Relations Act 2016 (Qld) ('the IR Act'). I indicated to the Mr Bakhash that he would have the opportunity to provide submissions as to why he has an arguable case. [7] Directions to that effect were issued on 11 August 2022. Relevant legislation [8] Section 562A of the IR Act relevantly provides: (1) … (2) … (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 1 In his appeal notice Mr Bakhash states "Surely I have a right to informed consent, which is a reasonable excuse, as per the Australian Immunisation Handbook which says that consent must be given voluntarily in the absence of undue pressure, coercion or manipulation. In my letter I also quoted the Queensland Human Rights Act, the Biosecurity Act, the Criminal Code Act and the Nuremberg Code. Exercising my rights that I have in these Acts and regulations are reasonable excuse for not complying with their unlawful direction". 2 Submissions of the Department filed 30 August 2022, paragraph 6. 3 A list of these decisions was referenced in the submissions of the department filed 30 August 2022 at paragraph 10. -- 3 of 8 -- 4 (ii) is misconceived or lacks substance; or (iii) should not be heard for another compelling reason. (Underlining added) Submissions of the parties Submissions of Mr Bakhash [9] Mr Bakhash filed submissions on 25 August 2022. Mr Bakhash submits his appeal consists of two parts: Firstly, I absolutely hold steadfast to the belief that I do have a reasonable excuse for not following this Direction. My right to refuse an injection is based on my inalienable right as an independent sovereign citizen to refuse this mandated and coerced medical injection. This right is not extinguished by any chief health officer’s Direction or any such narrow rulings by any court. Secondly, the Department is not treating its workforce equally by the way it is arbitrarily choosing to impose disciplinary findings against unvaccinated staff that did not take any leave from the workplace during the mandated period, yet not imposing any disciplinary findings against unvaccinated staff that took leave during the mandated period and who are now also back at work. [10] Mr Bakhash submits that unvaccinated staff who took leave are, at the time of filing his submissions, back at work without any disciplinary action being imposed upon them. Mr Bakhash submits that he was initially on leave, however he withdrew the leave. Following the withdrawal, the department issued Mr Bakhash with what he describes as a 'breach notice for not following the direction'. [11] Mr Bakhash contends that the department acted on a discriminatory basis because the department is only disciplining the workers who did not receive the covid vaccine and elected not to take any leave, whilst those who made themselves unavailable to work are not being subject to the same disciplinary action. [12] Mr Bakhash closes his submissions by contending the department should impose disciplinary action on all workers who did not comply with the direction, or alternatively they should not impose disciplinary action against any workers who did not comply with the direction. [13] Mr Bakhash attached an email dated 17 March 2022 responding to a letter from the department which invited Mr Bakhash to show cause as to why he should not be suspended without pay pursuant to s 137(4) of the Public Service Act 2008 (Qld). His response email comprises of two sections: 1. Mr Bakhash's contentions that the direction contravenes various laws and his 'inalienable human rights'; and -- 4 of 8 -- 5 2. The important projects that Mr Bakhash started at the school he worked at, and how he continues to be involved in them. Submissions of the Department [14] The department submits that the appeal should not be heard because it has no reasonable prospects of success. The department notes the assertions by Mr Bakhash that the direction violates his personal rights and right to informed consent have been addressed extensively by the Commission, and it is exceedingly unlikely that the matters will be interpreted differently by the Commission in this case if the matter proceeds. [15] The department relies on the numerous cases where the Commission has found that the direction is lawful and reasonable, and submits that it was open to the department to form a reasonable belief that Mr Bakhash was liable to discipline for failing to follow a lawful and reasonable direction.4 [16] The department submits that to the extent that Mr Bakhash asserts his right to informed consent involves some degree of novelty, he is mistaken.5 [17] The department further notes Mr Bakhash's appeal notice advances the argument that the disciplinary action was not appropriate in the circumstances. The department notes that the commission has found disciplinary action up to and including termination of employment to be fair and reasonable in cases similar to that of Mr Bakhash.6 [18] In relation to the submissions of Mr Bakhash that there is a disparity of treatment between employees of the department who took leave and those who did not take leave, the department submits:7 The Respondent can confirm that this proposition is accurate, however notes that this can be distinguished from the present case because employees who took approved leave at their own initiative for the duration of the Directions were not required to attend the workplace to perform the duties of their role. Where an employee was required to return early from leave or where they requested to do so they were then subject to the same disciplinary proceedings as other employees who had chosen not to comply with the Directions. To further clarify, the timing of the request for leave and the duration of the leave are both relevant factors informing whether an employee would properly be the subject of disciplinary proceedings for non-compliance with the Directions. 4 Thorley v State of Queensland [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. 5 Currie (Murray) v State of Queensland (Department of Education) [2022] QIRC 269; Higgins v State of Queensland (Queensland Health) [2022] QIRC 030. 6 Miller v State of Queensland (Department of Education) [2022] QIRC 316. 7 Submissions of the department, paragraph 13. -- 5 of 8 -- 6 Consideration [19] At the mention, Mr Bakhash indicated he would make submissions as to the disparity of treatment between the workers who did not comply with the direction and took leave, compared to those who did not elect to take leave. Mr Bakhash was informed if he wished to make such a submission, he would need to provide evidence, including identifying names of those who he alleges are being treated differently, to enable the department to properly respond to such a submission. Despite this, Mr Bakhash failed to provide any evidence in support of this assertion. [20] The letter Mr Bakhash attached to his submissions traverses a number of arguments that have been unsuccessfully raised on numerous occasions in this Commission, including but not limited to: • A number of statutory instruments that Mr Bakhash submits render the direction unlawful, including the Privacy Act 1998, the Human Rights Act 2019 (Qld), the Commonwealth Constitution, the Criminal Code Act 1995 (Cth), and the Biosecurity Act 2015 (Cth); • Mr Bakhash cannot provide informed and valid consent to have the vaccine; • Mr Bakhash does not require any pharmaceutical medication for his health; and • Vaccines do not prevent individuals from contracting COVID-19 or spreading COVID-19. [21] In Elliott v State of Queensland (Queensland Health),8 I made the following observations in relation to such arguments that have previously been heard and determined before this Commission: [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 8 [2022] QIRC 332. -- 6 of 8 -- 7 '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 departments for technical inadequacies, no appellant has succeeded on the increasingly tedious suite of arguments of this nature.9 [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. [22] I adopt the above comments. All of the arguments advanced by Mr Bakhash are incorrect. Arguments relying on federal legislation are irrelevant, and his assertion in his letter of 17 March 2022 in relation to the Human Rights Act 2019 (Qld) is incomplete in that it fails to consider the effect of s 13 of that Act and the extent to which human rights may be legitimately limited. [23] I note, as I did in Elliott,10 that Mr Bakhash has been sufficiently skilled to find information to support his beliefs. It would appear that his research skills are limited to finding support for his pre-existing views. This is not research. It is known as 'confirmation bias'. Had Mr Bakhash applied genuine objective efforts to e.g. research the relevant case law, he would have readily appreciated the lack of merit his arguments have. [24] The only aspect of Mr Bakhash's submissions that has not previously been addressed by the Commission is his submission that only employees of the department who did not take a period of leave are subject to disciplinary action. [25] The respondent noted in their submissions that where an employee returned early from leave or where they requested to do so, they became subject to the same disciplinary proceedings as other employees who had not complied with the direction and subsequently could not attend their workplace. Employees who were on approved leave were not required to attend the high risk setting to perform their duties at the relevant 9 See for example: Brasell-Dellow & Ors v State of Queensland, (Queensland Police Service) & Ors [2021] QIRC 356; 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] 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. 10 [2022] QIRC 332, [37]. -- 7 of 8 -- 8 time. I accept the department's submission in this regard and find that in those circumstances there is no disparity. [26] Further, notwithstanding his opportunity to provide evidence to advance this argument, Mr Bakhash failed to do so. [27] In circumstances where there can be no dispute as to the lawful and reasonable nature of the direction, and where Mr Bakhash continues to fail to comply with the direction it is inevitable that Mr Bakhash will be sanctioned. I would add that a failure to comply with a lawful and reasonable direction is, in my view, a serious act of insubordination, especially where the direction is made in the context of departmental attempts to manage the impact of a highly contagious and potentially deadly virus. Such conduct, in the absence of any compelling mitigating factors, would justify termination of employment in my view. Conclusion [28] Having regard to the submissions filed by Mr Bakhash in this matter I am satisfied that they reveal that his appeal is founded on grounds that are the same or similar to grounds that have already been extensively dealt with by this commission and have been consistently rejected. Even when offered an opportunity to distinguish his appeal, Mr Bakhash was unable or unwilling to do so. [29] The resources of this commission have been extensively diverted during this year in dealing with uninformed, baseless arguments of the type advanced now by Mr Bakhash. Using public resources to continue to deal with the same arguments that have been consistently and repeatedly rejected cannot be in the public interest. [30] In the circumstances I consider the overwhelming lack of merit or novelty in Mr Bakhash's arguments is a compelling reason to exercise my discretion under s 562A(3) of the IR Act. In those circumstances, I decline to hear Mr Bakhash's appeal. Order [31] In all of the circumstances, I make the following order: 1. Pursuant to s 562A(3) of the Industrial Relations Act 2016 (Qld), I decline to hear the Appellant's appeal against the decision. -- 8 of 8 --