Unvaccinated worker’s discrimination complaint dismissed by the QIRC

Triplow v Leidos SAR Services Pty Ltd [2024] QIRC 12

On 24 January 2024, Commissioner Dwyer dismissed a former employee’s discrimination complaint arising from his dismissal due to his non-compliance with the direction to be vaccinated against COVID-19.

Factual background

In his employment as a Drop Master based at the Cairns Airport, the employee was required to be vaccinated against COVID-19 in accordance with the Chief Health Officer’s now revoked COVID-19 Vaccination Requirements for Workers in a High-Risk Setting Direction (Direction). The employee provided his employer with a medical certificate from his general practitioner seeking medical exemption from compliance with the Direction based on previous adverse reactions to vaccines. The employer considered the medical certificate insufficient for the purpose of demonstrating a medical contraindication to a COVID-19 vaccine.

After a show cause process, the employee’s employment was terminated due to his non-compliance with the Direction.

The employee complained to the Queensland Human Rights Commission (QHRC) that his employer had discriminated against him due to his impairment in contravention of the Anti-Discrimination Act 1991 (AD Act).

Decision

In considering whether to exercise his discretion to dismiss the complaint under s 541(b) of the Industrial Relations Act 2016 on the basis that further proceedings are not necessary or desirable in the public interest, Commissioner Dwyer acknowledged the fundamental importance of access to courts and tribunals for litigants, particularly in circumstances where the employee’s employment had ended.

However, in dismissing the complaint, Commissioner Dwyer found:

1. The employee did not present any cogent medical evidence to support a conclusion he possessed the attribute of ‘impairment’ under the AD Act. The medical certificate provided which confirmed the employee ‘prefers not’ to become vaccinated against COVID-19 was not a medical recommendation against vaccination.
2. The employee was not treated ‘less favourably’ as the fate of his employment (i.e. termination) was no different to the likely fate of any employee who failed to comply with the Direction, regardless of impairment. The distinction between the employee and other employees who were granted a medical exemption was the adequacy of evidence of impairment relied upon to support those employees’ exemption applications, not the impairment.
3. The employee’s inadequate evidence of an impairment (not the alleged impairment itself) caused his application for an exemption from compliance with the Direction to be refused.
4. The essential elements of a claim of impairment discrimination could not be made out.
5. The employer did not ask ‘unlawful questions’ by virtue of s 124(3) of the AD Act in that the medical information was requested for the purpose of compliance with the directive i.e., reasonably required for a purpose that did not involve discrimination. Alternatively, the request for medical information would be exempt in circumstances where it was necessary to protect public health or reasonably necessary to protect health and safety at work.
6. To the extent the employee appeared to assert breaches of the Human Rights Act 2019 (HR Act) (despite excluding these from his complaint to the QHRC), the recharacterisation of a human rights complaint to a complaint under the AD Act cannot occur simply at the election of the employee. The employee’s complaint to the QHRC did not include any complaint about contraventions of the HR Act and the Queensland Industrial Relations Commission (QIRC) therefore does not have jurisdiction. A human rights complaint cannot be added by way of amendment pursuant to s 178 of the AD Act.  In any event, the actions of his employer in no way restricted the employee’s movement, nor was he subjected to medical or scientific experimentation in the form of the direction to be vaccinated against his will.
7. It was difficult to imagine a more important purpose justifying the limitation of a human right than the management of a risk of transmission of a highly contagious and potentially deadly virus.

The decision is important as it is the first decision of the QIRC in relation to a complaint of discrimination regarding the termination of the employment of an employee for failure to comply with COVID-19 vaccination requirements. The decision addresses a number of matters which have been repeatedly raised in the QIRC by employees who declined to be vaccinated against COVID-19 and in particular, those who allege they have been discriminated against or had their human rights breached by their employer as a result of COVID-19 vaccination mandates.

Triplow v Leidos SAR Services Pty Ltd - [2024] QIRC 12

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