In Elliott v State of Queensland (Queensland Health) [2022] QIRC 332 the Queensland Industrial Relations Commission in considering a dismissal over disregard of a vaccination directive states
[25] The department submits that the decision to make a disciplinary finding against Ms Elliott was fair and reasonable for the following reasons: The directive is lawful (being issued pursuant to section 51 of the Hospital and Health Boards Act 2011 (Qld)) and reasonable; Ms Elliott's usual workplace is the Mackay Base Hospital where she is required to attend for legitimate reasons including training or changes to operational requirements; Ms Elliott did not have a reasonable excuse for non-compliance with the directive; Vaccine hesitancy or personal preference not to receive a COVID-19 vaccine is not an exceptional circumstance and does not result in compliance with the directive being unreasonable; and Ms Elliott's concerns raised in relation to receiving the vaccine were addressed in Ms Jones' letter of 21 February 2022. ...
Saliently it comments
[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 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.
[33] Ms Elliott was able to provide fulsome submissions in response the department in respect of her appeal. Ms Elliott was further afforded the opportunity pursuant to s 562A to demonstrate that she has an arguable case.
[34] For the reasons outlined immediately above, I do not intend to descend to a detailed analysis of Ms Elliott's arguments. Suffice to say they traverse many of the now well-travelled and consistently rejected arguments and include submissions that Ms Elliott:
- Did not consent to the alteration of her employment contract;
- Cannot give valid consent to be vaccinated due to coercion;
- Presented for vaccination but was refused because she informed the medical practitioners that she was presenting under duress; and
- Was not provided with a risk assessment.
[35] In addition to these matters, Ms Elliott makes submissions relying on information (apparently extracted from the Fair Work Commission website) and refers to federal legislation regarding coercion (that has no application to her employment). Ms Elliott also seeks to invoke the Human Rights Act 2019 (Qld) ('HR Act') (although entirely omits any reference or consideration to s 13 of that Act). Ms Elliott also submits that the Directive is 'inconsistent' with industrial instruments and 'Acts'.
[36] All of these arguments advanced by Ms Elliott are patently wrong. Ms Elliott appears adept at researching information that she considers helpful to her arguments however, none of it is. Assertions about coercion are misconceived. References to federal legislation are irrelevant. Arguments relying on the HR Act are incomplete.
[37] The fact that she relies on unreliable or irrelevant information does not detract from the fact that she was at least sufficiently skilled to find the information in the first place. Had Ms Elliott applied her research skills to conduct research of the relevant case law, she would have readily appreciated how unmeritorious her arguments are.
[38] With one exception, all of the arguments advanced by Ms Elliott are (more or less) the same as arguments that have been run (without success) on countless occasions before this commission throughout 2022. There is only one argument made by Ms Elliott that is unique to her circumstances.
[39] Ms Elliott's role with the department is currently the subject of a temporary flexible work agreement. Ms Elliott has approval to perform her work from home on a full-time basis. For this reason, Ms Elliott argues that she has no reason to enter departmental facilities which, she argues, puts her outside the scope of the directive. As unique as this argument might be, a cursory consideration of it reveals its flaws.
[40] Ms Elliott's argument in this regard entirely ignores the fact that she remains an employee of the department and therefore she remains subject to any reasonable and lawful direction. Regardless of whether she is currently not required to attend a departmental facility to perform her duties the fact remains that, subject to the appropriate notice, her temporary flexible arrangement could be withdrawn at any time. In the event of this occurring, all of the risks sought to be addressed by the directive would immediately arise if Ms Elliott was unvaccinated. ...
[42] The gravity of the purpose of the directive i.e., to manage the risks associated with transmission of COVID-19 in departmental facilities means that every reasonable step to manage that risk must be taken. This would extend to ensuring that every employee who is or even may be required to attend upon a departmental facility has complied with the directive.
[43] Ms Elliott's expectation of working from her home indefinitely and without exception is misconceived. As an employee of the department, she remains liable to comply with all lawful and reasonable directions, any number of which might require her to attend at a departmental facility in the foreseeable future. In those circumstances, the only unique feature of her appeal is equally as devoid of merit as the other matters she raises.
Suspension without renumeration
[44] With respect to Ms Elliott's appeal against the decision to suspend her without remuneration, here too Ms Elliott fails to have regard to relevant precedents.
[45] In circumstances where there can be no dispute as to the lawful and reasonable nature of the directive, and where Ms Elliott has openly failed to comply with that directive without reasonable excuse, the termination of her employment might well be a fait accompli. In those circumstances, one can well appreciate how the decision maker would not consider it appropriate to continue remunerating a defiantly recalcitrant employee relying on a collection of misconceived arguments. ...
[46] Having regard to all of the submissions filed by Ms Elliott in this matter I consider they reveal that the entire appeal is founded on grounds that have already been extensively dealt with by this commission and been consistently rejected or alternatively, Ms Elliott's appeal grounds are misconceived.
