First COVID-19 vaccine reinstatement application dismissed by QIRC

Over the past 12 months, the Queensland Industrial Relations Commission has received hundreds of public service appeals and applications for reinstatement relating to mandatory COVID-19 vaccination requirements introduced by Queensland government departments and agencies. In 2022, the Commission delivered close to 500 decisions. Although there have been numerous decisions in relation to COVID-19 public service appeals, there has not yet been a decision in relation to a COVID-19  application for reinstatement: until now.

On 27 January 2023, Commissioner Dwyer dismissed an application for reinstatement brought by a former Queensland Health employee who refused to be vaccinated against COVID-19. Commissioner Dwyer found it was not in the public interest for the Commission to deal with the former employee’s application. Crown Law acted for the State in this matter.

The former employee may best be described as ‘vaccine hesitant’. She failed to comply with the direction to receive two doses of a COVID-19 vaccine and her employment was terminated on 15 September 2022. By this date, there was a significant volume of public service appeal decisions dealing with vaccine hesitancy, in the context of employees who sought an exemption from vaccination.

Commissioner Dwyer informed the former employee that he was considering dismissing her application under s 541(b) of the Industrial Relations Act 2016 on the basis he considered it was not necessary or desirable in the public interest for the matter to be heard further. Commissioner Dwyer’s preliminary assessment was there was nothing about the former employee’s application that distinguished it from the many decisions in which the same or similar arguments to the ones she raised had been rejected by the Commission.

Commissioner Dwyer acknowledged the seriousness of exercising his discretion under s 541 of the IR Act, noting it is a significant step to deprive a litigant of the right to advance their proceedings, especially in the context of proceedings where they had lost their employment.

However, in dismissing the application, Commissioner Dwyer held:

  1. The application for reinstatement was replete with the all too familiar conspiracy theories that have circulated since the beginning of the pandemic. The former employee’s allegations were entirely unsupported by evidence.
  2. The matters identified in the application and upon which the former employee relied to argue her dismissal was unfair are so obviously devoid of merit that they do not require or warrant further consideration. The public interest is not served by the Commission's resources being expended listening to theories which, despite their prevalence in certain unregulated forums, remain wholly incapable of substantiation in any court or tribunal where they have been scrutinised.
  3. Having been on notice of the Commissioner’s preliminary view that her application was without merit, the former employee had the opportunity to demonstrate some merit in her written submissions. Both her application and submissions were equally unmeritorious.

Noting the significant volume of COVID-19 related applications for reinstatement currently before the Commission, the decision is an important precedent. Although applications to dismiss a matter at an early stage should be brought with some caution, the decision indicates that, in an appropriate case, strike out applications in mandatory vaccination matters may be received favourably by the Commission. The State must behave as a model litigant in the conduct of all litigation by adhering to the principles of fairness and firmness. Accordingly, it is appropriate for the State to consider contesting similar matters which are so lacking in merit and in which the former employee relies on matters which have been extensively considered and rejected by the Commission in other public service appeals. This approach may also reduce the unnecessary expenditure of public money and resources in defending matters that are without merit which is consistent with the financial accountability obligations of the State.

The information in this publication is provided for general purposes only. It is not to be relied on as a substitute for legal advice. Crown Law and the Department of Justice and Attorney-General accept no liability for losses caused by reliance on the material in this publication. Formal legal advice should be obtained for particular matters.

Published: 7 February 2023