COVAX discrimination complaint not in the public interest

In Barbagallo v State of Queensland (Queensland Health) & Ors [2025] QIRC 370, the Queensland Industrial Relations Commission (QIRC) declined to hear a discrimination complaint by a former Queensland Health employee who failed to comply with the requirement to be vaccinated against COVID-19.

Factual background

The employee was employed as an Assistant in Nursing at a hospital. He did not comply with the requirement to be vaccinated against COVID-19. He was ultimately dismissed as a result of his failure to comply with the vaccination requirements. The employee alleged his dismissal amounted to discrimination on the basis of religious belief, trade union activity and political belief.

When the complaint reached the QIRC, the State applied to have the matter dismissed on the basis that all the matters raised by the employee have already been heard and determined by the Commission or are otherwise misconceived or lacking in substance. Since early 2022, the QIRC has published many decisions in relation to employee challenges to the COVID-19 vaccine mandates, consistently finding the mandate was lawful, fair and reasonable. The Barbagallo decision is only the second decision involving a complaint of discrimination (Triplow v Leidos SAR Services Pty Ltd [2024] QIRC 12 being the first decision).

Decision

Commissioner Dwyer rejected the employee’s assertions that his claims were novel and found there was no public interest in the matter being heard.

In assessing the merits of a discrimination complaint, Commissioner Dwyer emphasised that even if the employee was able to link characteristics such as vaccine hesitancy to the attribute of impairment and or religious belief, he would still be required to prove he was subjected to less favourable treatment than a person without the attribute.  This could not be done. Commissioner Dwyer found:

• [55] There is no evidence before the Commission that would support a conclusion that an employee meeting the criteria of the comparator was treated any differently… . On the contrary, it is beyond trite to note that a failure to comply with lawful and reasonable direction will invariably justify sanctions for an employee, including dismissal.

With respect to the related complaint under the Human Rights Act 2019, Commissioner Dwyer briefly observed that to whatever extent the employee’s human rights might have been limited it was justified pursuant to s 13 of the HR Act.

The key takeaway was summed up by Commissioner Dwyer as follows:

• [79] The inevitable reality of this matter is that Mr Barbagallo, like many others, lost his employment because he exercised his free choice not to be vaccinated. No matter how many reasons, or attributes, or human rights, Mr Barbagallo might seek to present in order to portray the respondent's actions as discriminatory or unfair, the reasonableness and lawfulness of the Directive has been repeatedly and convincingly upheld as justification for the termination of employment of non-compliant employees.'

The decision sets a significant precedent in relation to COVAX discrimination complaints which are yet to be heard.