Barbagallo v State of Queensland

Health Employment Directive No. 12/21 Employee COVID-19 vaccination requirements

Human Rights Act 2019 (Qld) s 13

Industrial Relations Act 2016 (Qld) s 541(b)(ii)

Work Health and Safety Act 2011 (Qld)

Allison v State of Queensland (Department of Education) [2022] QIRC 152

Brailey v State of Queensland (Department of Education) [2022] QIRC 401

Brassell-Dellow & Ors v State of Queensland (Queensland Police Service) & Ors [2021] QIRC 356

Campbell v State of Queensland (Department of Justice and Attorney-General) [2019] ICQ 18

Carr v State of Queensland (Department of Education) [2022] QIRC 188

Currie (Murray) v State of Queensland (Department of Education) [2022] QIRC 269

Gilbert v Metro North Hospital and Health Service & Ors (No. 2) [2023] ICQ 020

Gorry v State of Queensland (Department of Education) [2022] QIRC 196

Graf and Ors v State of Queensland (Department of Education] [2022] QIRC 451

Janulewicz v State of Queensland (Queensland Health) [2023] QIRC 026

Johnston & Ors v Carroll (Commissioner of the Queensland Police Service) & Anor; Witthahn & Ors v Wakefield (Chief Executive of Hospital and Health Services and Director General of Queensland Health); Sutton & Ors v Carroll (Commissioner of the Queensland Police Service) [2024] QSC 2

Mackenzie v State of Queensland (Queensland Health) [2023] QIRC 121

Mocnik & Ors v State of Queensland (Queensland Health) [2023] QIRC 058

Nicholas v State of Queensland (Department of Education) [2022] QIRC 157

Prentis v State of Queensland (Department of Education) [2022] QIRC 212

Schimke v State of Queensland (Department of Education) [2022] QIRC 136

Smith & Sherlock v State of Queensland (Queensland Health) & Anor (No. 3) [2024] QIRC 38

Stacey v State of Queensland (Department of Education) [2024] QIRC 220

Tadeo v State of Queensland (Department of Education) [2022] QIRC 177

Thorley v State of Queensland (Department of Education) [2022] QIRC 133

Tribe v State of Queensland (Department of Education) [2022] QIRC 203

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

Western Sydney University v Thiab [2023] NSWCA 57

• [1] Mr Angelo Barbagallo was employed by Queensland Health from 2 February 2015 to 13 December 2022. At the time of his dismissal, he was employed as an Assistant in Nursing at Sunshine Coast University Hospital within the Sunshine Coast Hospital and Health Service ('the Department').

• [2] During his employment, Mr Barbagallo was subject to the Health Employment Directive No. 12/21 Employee COVID-19 vaccination requirements ('the Directive'), which came into effect on 11 September 2021. Mr Barbagallo did not comply with the Directive.

• [3] On 27 September 2021, Mr Barbagallo applied for an exemption on the grounds of a recognised medical contraindication. Mr Barbagallo's application was refused based on a determination by a medical expert that his conditions were not a recognised medical contraindication that precluded vaccination with a COVID-19 vaccine.

• [4] On 18 January 2022, Mr Barbagallo sought an internal review of the decision, stating that he would "not be partaking in these Covid19 vaccines". During this process, Mr Barbagallo requested that his exemption application be considered on the basis of a genuinely held religious belief.

• [5] The internal review was completed and the decision to refuse the exemption was confirmed on 16 February 2022. Mr Barbagallo did not exercise his right to have this decision reviewed.

• [6] Over the next 6 months, Mr Barbagallo produced a number of medical certificates, stating he was unfit for work while he accessed a combination of paid and unpaid sick leave.

• [7] On 26 August 2022, Mr Barbagallo produced a medical certificate confirming he was medically cleared to return to work on a graduated return to work program of 2 hours per day for 2 days a week. This program was ultimately reduced to 1 hour per day for 2 days per week.

• [8] On 30 August 2022, Mr Barbagallo requested to access recreational leave for the hours he was cleared to work pursuant to the latest medical certificate, presumably because he was not actually able to return to work due to his being non-compliant with the Directive.

• [9] By letter dated 21 October 2022, Mr Barbagallo was invited to show cause ('the first Show Cause Notice') as to why he should not be liable to discipline for failing to comply with the Directive. Additionally, as part of this process Mr Barbagallo was suspended (with pay) until 4 November 2022, after which, he was suspended from duty without pay until his employment was terminated.

• [10] On 7 November 2022, Mr Barbagallo responded to the first Show Cause Notice. By letter dated 28 November 2022, Mr Barbagallo was subsequently advised that the Allegation had been substantiated, and he was provided seven (7) days to show cause as to why termination of his employment should not be imposed ('the second Show Cause Notice').

• [11] Mr Barbagallo did not respond to the second Show Cause Notice, and his employment was terminated on 13 December 2022. Notably, the time limitation for Mr Barbagallo to have brought an application for reinstatement would have expired on 3 January 2023. Mr Barbagallo did not file a reinstatement application.

• [12] On 27 February 2023, Mr Barbagallo filed a complaint in the Queensland Human Rights Commission ('QHRC') alleging discrimination and human rights contraventions.

• [13] In summary Mr Barbagallo alleges contraventions of the Anti-Discrimination Act 1991 (Qld) ('the AD Act') and the Human Rights Act 2019 (Qld) ('the HR Act').

• [14] According to his application to the QHRC, Mr Barbagallo contends that the contraventions of the AD Act are:

• [15] Despite the application plainly not including a nomination of the attribute of impairment as one of the alleged contraventions, the QHRC appears to have characterised the complaint as including it. The complaint form contains fulsome content in relation to the nominated attributes. The place on the form available to nominate 'impairment' discrimination is entirely blank.

• [16] Further, there does not appear to be any other written reference to impairment in any documents that accompany the complaint. The respondent's submissions demonstrate they were unaware of it as a nominated basis for the allegation of discrimination.[1]

• [17] In those circumstances there appears to be no basis for the inclusion of impairment by the QHRC in their characterisation of the complaint in the referral material. It appears to have been pulled from thin air by someone at the QHRC and included. This is then compounded by Mr Barbagallo opportunistically adopting this illegitimate aspect of the complaint and then making it the centrepiece of the argument about novelty in this interlocutory proceeding.

• [18] Whatever the explanation for the unexpected inclusion of 'impairment', the Commission is not bound by the QHRC's characterisation of the complaint. Given the state of the material, in the ordinary course of events, I would require Mr Barbagallo to seek leave to amend his application before being permitted to formally pursue a complaint of discrimination on the basis of impairment. But given the interlocutory issue arising in this matter and the decision I have reached, it is not necessary to consider the question of leave to amend.

• [19] For the sake of convenience, I will include consideration of the arguments relevant to a complaint of impairment discrimination but, to be clear, that will in no way constitute an acceptance of the complaint of impairment as part of the substantive proceedings. Whatever the fate of this matter after this decision is released, the status of the impairment complaint is that it has not been accepted.

• [20] In addition to his allegations of discrimination, Mr Barbagallo also contends he has been the subject of contraventions of his human rights as prescribed by the HR Act. The complaint contends that the following human rights were breached:

1. The right to protection from torture or cruel, inhuman or degrading treatment;

1. The right to peaceful assembly and freedom of association; and

1. The right to freedom of thought, conscience, religion and belief.

• [21] Despite the complaint form inviting the provision of details (at Part E), the complaint does not particularise whether the alleged discrimination is said to be direct or indirect. It does not clearly particularise what conduct of the Department is alleged to be discrimination. It does not clearly particularise what conduct constitutes which of the four separate contraventions alleged.[2] It does not particularise what actions of the Department constitutes less favourable treatment.

• [22] In relation to the alleged HR Act contraventions, beyond simply nominating the prescribed human rights set out above, the complaint does not particularise what conduct of the Department is alleged to have restricted each of these rights or the way in which they were restricted.

• [23] In the ordinary course of such a complaint these defects would be required to be addressed by e.g. a Statement of Facts and Contentions. But in the circumstances of the interlocutory issue, Mr Barbagallo has had the opportunity to clarify his complaint in written submissions addressing the proceedings more generally. Regrettably it would seem the opportunity to provide clarity has not assisted.

• [24] The complaint was not conciliated. The matter was then referred to the Queensland Industrial Relations Commission ('the Commission') pursuant to s 166 of the AD Act. The referral was received in the Industrial Registry on 11 January 2024 and became matter AD/2024/4.

• [25] A conciliation conference was held between the parties on 27 February 2024. At the conference, Mr Barbagallo was put on notice that while an anti-discrimination complaint was not typical in his circumstances, the material facts of his complaint arose in a context involving issues surrounding vaccine mandates that had been extensively addressed already by the Commission.

• [26] It was explained to Mr Barbagallo that in recent years, the Commission had dealt with a number of applications by people in a variety of proceeding types with similar facts to his i.e., where they have declined to comply with a direction to be vaccinated on some or all of the grounds he outlines in his complaint. He was advised that none of those litigants had been successful in justifying their refusal to comply with the Directive.[3]

• [27] The conference did not descend into discussions about merits or alternative resolution of the complaint. Subsequent to the conference, the respondents filed a formal application in existing proceedings on 8 March 2024 seeking that the matter be struck out pursuant to section 541 of the Industrial Relations Act 2016 (Qld) ('IR Act') ('the application').

• [28] The Commission issued directions on 19 March 2024 requiring the parties to provide written submissions addressing whether it is in the public interest that Mr Barbagallo's case should be dealt with by the Commission. The application has been dealt with on the papers.

• [29] Section 541 of the IR Act relevantly provides:

The court or commission may, in an industrial cause do any of the following -

(a) make a decision it considers just, and include provision for preventing or settling the industrial dispute or dealing with the industrial matter to which the cause relates, without being restricted to any specific relief claimed by the parties to the cause;

(b) dismiss the cause, or refrain from hearing, further hearing, or deciding the cause, if the court or commission considers -

(ii) further proceedings by the court or commission are not necessary or desirable in the public interest;

(c) order a party to the cause to pay another party the expenses, including witness expenses, it considers appropriate.

• [30] In Campbell v State of Queensland (Department of Justice and Attorney-General),[4] His Honour Justice Martin considered the power in s 541:

[26] In the earlier case of Quaedvlieg & Ors v Boral Resources (Qld) Pty Ltd Hall P, in dealing with an application to strike out for want of prosecution, cited with approval the reasoning of Thomas JA in Quinlan v Rothwell as follows:

"There is now a consciousness of the need for some level of efficiency in the use of the courts as a public resource. That, of course, must not displace the need for reasonable access to the courts and the provision of justice according to law in each matter, but it highlights the fact that the former laissez faire attitude by courts towards the leisurely conduct of actions at the will of the parties has ended. At the same time the rules of court are not an end in themselves. They do not exist for the discipline of practitioners or clients, or for the protection of courts from inefficient litigants, but rather as a means of ensuring that issues will be defined in an orderly way and that parties have the opportunity of full preparation of their case before the trial commences. The rules also afford defendants the means of bringing to an end actions in which the other party will not abide by the rules."

[27] Insofar as it may confine the exercise of discretion under s 541, the purpose of the Act is stated as follows:

The main purpose of this Act is to provide for a framework for cooperative industrial relations that -

(b) supports the delivery of high quality services, economic prosperity and social justice for Queenslanders."

[28] The process for consideration of an application under s 541 does not require that the respondent's case be taken at its highest. The cognate provisions in federal legislation were frequently considered by Full Benches of the federal tribunal, the Federal Court of Australia and the High Court of Australia. The accepted approach was that the applicant bore the onus of making the claim for relief. But the ascertainment in any particular case of where the public interest lay often depended on a balancing of interests, including competing public interests, and was very much a question of fact and degree.

[29] As the power given to the Commission by s 541 can prevent a party from pursuing relief otherwise available under the IR Act it is one which is to be exercised with due circumspection on a proper consideration of relevant materials. A "proper consideration" cannot be made where the case for the respondent is simply taken at its highest. While the onus remains on an applicant, the requirement to consider the "public interest" cannot be satisfied if an artificial inflation of the respondent's case is applied. Indeed, to take a respondent's case at its highest would almost always result in the dismissal of an application under this section. On an application of this type, a respondent is not relieved of any requirement to advance a case.

• [31] In State of Queensland v Lockhart Deputy[5] President O'Connor (as he then was) summarised the meaning of 'public interest' in relation to the exercise of the discretion in the following terms:

[21] In O'Sullivan v Farrer, Mason CJ, Brennan, Dawson and Gaudron JJ considered the expression 'in the public interest'. Their Honours wrote:

'Indeed, the expression, 'in the public interest', when used in a statute, classically imports a discretionary value judgment to be made by reference to undefined factual matters, confined only 'in so far as the subject matter and the scope and purpose of the statutory enactments may enable ... given reasons to be [pronounced] definitely extraneous to any objects the legislature could have had in view'.'

[22] In GlaxoSmithKline Australia Pty Ltd v Makin, the Full Bench of Fair Work Australia in considering what constitutes 'the public interest' wrote:

'Appeals have lain on the ground that it is in the public interest that leave should be granted in the predecessors to the Act for decades. It has not been considered useful or appropriate to define the concept in other than the most general terms and we do not intend to do so. The expression 'in the public interest', when used in a statute, classically imports a discretionary value judgment to be made by reference to undefined factual matters, confined only by the objects of the legislation in question.

Although the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters, it seems to us that none of those elements is present in this case.'

• [32] In essence, Mr Barbagallo submits that there is a public interest in having his complaint heard before the Commission. Briefly stated, Mr Barbagallo submits that:

• The respondents' strikeout application, on the same evidence, was dismissed by the QHRC. Because the QHRC determined the complaint was not misconceived and referred it as a whole, the Commission ought to find the same.

• There are (allegedly) 'hundreds' of stayed complaints that have a vested interest in the outcome of his complaint.

• His complaint, and it's supporting arguments, have not been appropriately addressed in the decision of Triplow v Leidos SAR Services Pty Ltd ('Triplow')[6] (as contended by the respondents). Mr Barbagallo argues that his complaint is distinguishable according to law, in that it requires the Commission to consider s 6 of the AD Act, as well as sections 3, 4, 48 and 58 of the HR Act.

• As opposed to Mocnik & Ors v State of Queensland (Queensland Health) ('Mocnik'),[7] and Triplow, his complaint seeks to explore the meaning of discrimination in the context of his 'characteristics', namely medical treatment anxiety, hesitancy, and non-vaccination status which are caused by his impairment and religious belief. To that end, Mr Barbagallo relies on s 8(1)(a) and (b) of the AD Act.

• Mr Barbagallo submits he has a reasonable excuse for not complying with the Directive. If the Directive was truly a reasonable direction, then his inability to provide valid consent to medical treatment due to his genuine health and religious concerns ought to be a reasonable excuse. Mr Barbagallo submits that the reasonableness of his excuse is even more compelling when considering he provided positive serology showing immunity to the COVID-19 virus, as the respondents could have simply approved his exemption as a reasonable alternative.

• There are compelling new court decisions, and updated evidence and scientific information which demonstrates a failure to consider human rights and the associated safety concerns of complying with the Directive.

• He has been discriminated against on the basis of his religious belief, trade union activity and political belief or activity.

• That termination of his employment for failure to comply with the Directive is a contravention of his human rights under sections 15, 16, 17, 18, 19, 20, 22, 23, 24, 25, 26, 27 and 31 of the HR Act.

• [33] The respondents contend that all the matters raised by Mr Barbagallo have already been heard and determined by the Commission or are otherwise misconceived or lacking in substance. On that basis, they submit that it is not in the public interest to further deal with Mr Barbagallo's complaint. The respondents rely on the following submissions in support:

• Most of the matters raised by Mr Barbagallo have been extensively considered and determined in numerous public service appeals, the collective reinstatement matter of Mocnik, and in the recent decision of Triplow.

• Triplow was the first decision of this Commission to consider a complaint of alleged discrimination arising from a vaccine mandate. In Triplow, it was observed that:[8]

[126] Additionally, there is a significant concern that the Commission's publicly funded resources will be unnecessarily expended on hearing what can already be seen as an irretrievably unmeritorious complaint. The public (including other litigants with matters already before this Commission) are entitled to expect the resources and time of the Commission will be expended on resolving matters of genuine controversy in a timely and cost efficient manner. That standard will soon be eroded where litigants with grievances that are wholly underwhelming in their merit are permitted too freely to place demands on the Commission's resources.

• Mr Barbagallo's allegations of indirect discrimination on the basis of religious belief, trade union activity and political belief or activity are more appropriately characterised as ones of direct discrimination in the circumstances where he purports to have been treated less favourably. The respondents submit that Mr Barbagallo was not treated less favourably because:

a) In respect of discrimination on the basis of religious belief, it was open to the decision maker to be satisfied that Mr Barbagallo's religious beliefs did not outweigh or take precedence over the objectives and requirements of the Directive. The Directive has consistently been found to be a lawful and reasonable direction,[9] and Mr Barbagallo was treated no less favourably than another employee, without his religious beliefs, who failed to comply with the Directive.

b) In respect of discrimination on the basis of trade union activity and his membership with the Nurses Professional Association of Queensland ('NPAQ'), it was held in Gilbert v Metro North Hospital and Health Service & Ors (No. 2)[10] that NPAQ is not a trade union, and member involvement cannot constitute trade union activity for the purposes of the AD Act.

1. In respect of discrimination on the basis of political belief or activity, Mr Barbagallo's hesitancy towards vaccination does not amount to an affiliation, view or belief associated with (including in opposition to) a political party, organisation or sufficiently identifiable political movement.[11]

• It was confirmed in Triplow that the context in which the respondent sought medical information and the specificity of the request made it 'patently clear' the request was of a nature that would be exempted by virtue of section 124(3) of the AD Act as it was requested for the purpose of complying with a directive to be vaccinated.

• In the alternative to the foregoing submissions, even if Mr Barbagallo could establish that he had been discriminated against, the exemptions provided for in sections 107 and 108 of the AD Act apply.

• The recent decision of the Supreme Court in Johnston & Ors v Carroll (Commissioner of the Queensland Police Service) & Anor; Witthahn & Ors v Wakefield (Chief Executive of Hospital and Health Services and Director General of Queensland Health); Sutton & Ors v Carroll (Commissioner of the Queensland Police Service)[12] considered human rights in the context of the COVID-19 pandemic and vaccination mandates. In that case, it was found that the right to privacy and reputation and the right to liberty have not been limited.[13] Further, any limits on Mr Barbagallo's right to protection from torture or cruel, inhumane or degrading treatment was justified.[14]

• Having regard to the above, Mr Barbagallo's allegations with respect to limitation of his human rights are misconceived or lacking in substance.

• [34] Mr Barbagallo's submissions repeat and rely on his earlier submissions, save to the extent he contends that the respondents have not sufficiently disputed contentions of genuine controversy raised by him. If the respondents wish to dispute the contentions of his complaint, it ought to be done at a hearing to allow his complaint to be properly ventilated. To that effect, Mr Barbagallo refers to the decision in Smith & Sherlock v State of Queensland (Queensland Health) & Anor (No. 3) ('Smith & Sherlock'),[15] where Power IC held:

[13] The Respondents submit that the contentions are legally flawed, particularly those of indirect discrimination on the basis of the attribute, marital status. As I understand it, the Complainants allege that s 8 of the Anti-Discrimination Act 1991 (Qld) extends the definition to include commonly associated aspects of the marital status attribute as being potentially influenced by the marital partner. As far as I'm aware, this is a novel contention. However, I'm unwilling to dismiss it before it can be fully ventilated. The opportunity for that to occur is at a hearing.

• [35] Mr Barbagallo's complaint essentially has two parts. Because of the dual functions performed by the QHRC, Mr Barbagallo is able to pursue alleged contraventions of the AD Act and the HR Act through the QHRC and now, in the Commission. Having regard to the list of alleged contraventions of the HR Act, there is nothing evidently unique or novel about those complaints. Mr Barbagallo's contentions of novelty appear confined to the alleged contraventions of the AD Act.[16]

• [36] Mr Barbagallo contends that the public interest lies, in part, in the novelty of his case. The novelty it is said, is that Mr Barbagallo intends to 'explore' the meaning of discrimination on the basis of 'characteristics'.[17] Mr Barbagallo then seeks to set his matter apart from the matter of Triplow by contending his arguments will consider the 'extension of discrimination' and refers to s 8(1)(a) and (b) of the AD Act. It is here that Mr Barbagallo's submissions reveal the misconception under which he is labouring.

8 Meaning of discrimination on the basis of an attribute

"Discrimination on the basis of an attribute" includes direct and indirect discrimination on the basis of -

(a) a characteristic that a person with any of the attributes generally has; or

(b) a characteristic that is often imputed to a person with any of the attributes; or

(c) an attribute that a person is presumed to have, or to have had at any time, by the person discriminating; or

(d) an attribute that a person had, even if the person did not have it at the time of the discrimination.

If an employer refused to consider a written application from a person called Viv because it assumed Viv was female, the employer would have discriminated on the basis of an attribute (female sex) that Viv (a male) was presumed to have.

• [38] Firstly, contrary to Mr Barbagallo's contention, s 8 of the AD Act is not an 'extension' of the term discrimination. Section 8 is a definition section, the purpose of which is to aid in the interpretation of s 7 of the AD Act. The nature of discrimination 'on the basis of' an attribute within the meaning of the AD Act is not something unfamiliar to the Commission. There is extensive jurisprudence dealing with discrimination complaints under the AD Act extending back over three decades. While individual facts of each matter will, at times, invite some consideration of the meaning of the term in unique factual circumstances, there is nothing to 'explore'. Each case will require a complainant to demonstrate the alleged discrimination was on the basis of the nominated attribute, and the facts of each case will be determinative.

• [39] Having regard to Mr Barbagallo's written complaint of discrimination contained in the Form 85 - Referral of a matter, the lack of novelty is especially apparent. Despite his ambitious attempts in his written submissions to contort his claim into something more complex, the plain details of his grievance are clearly revealed in his written complaint.

• [40] In simple terms, Mr Barbagallo contends inter alia, that he was subject to discrimination contrary to the prohibition prescribed by s 7(1)(i), (j) and (k) of the AD Act. That is to say, Mr Barbagallo contends he was subject to less favourable treatment on the basis of his religious beliefs, political beliefs and trade union activity. A more recent addition, (which has not been accepted but which I will deal with for this matter) is his complaint of a contravention in respect of impairment.

• [41] Mr Barbagallo will need to demonstrate that he was subject to less favourable treatment on the basis of these attributes or (as his submissions suggest) because of some characteristic accompanying those attributes or usually imputed to someone with the attribute. The fact that such an argument might be novel to Mr Barbagallo does not make it objectively novel.

• [42] Further, it is not clear what Mr Barbagallo considers the 'less favourable treatment' to be. While it is not plainly particularised, what can be reasonably implied from his written complaint is that he contends everything from the imposition of the mandate, to the refusal by the respondent to grant exemptions, to the termination of his employment, all individually and collectively appears to be the 'less favourable treatment'.[18]

• [43] The fact that these complaints arise in the context of non-compliance with a vaccine mandate does not make this claim novel. While it is fair to say that there is no jurisprudence dealing with a complaint such as Mr Barbagallo's under the AD Act, that does not of itself, make the complaint novel. Alternatively, if it does make it novel, then that novelty alone does not evoke the public interest.

• [44] Having regard to Mr Barbagallo's written submissions, the broad concepts making up his arguments are largely a regurgitation of the now tedious arguments made, again and again, by individuals and which have repeatedly and consistently been rejected.[19]

• [45] Further (and more importantly) to the extent that Mr Barbagallo ventilates these arguments again in these proceedings, much of their presentation in his submissions is irrelevant to a complaint of discrimination. For example, it is not necessary or relevant for Mr Barbagallo to continue (as he has) to argue his justification for non-compliance with the vaccine mandate. Yet the submissions he filed proceed (for page after page) to purport to inform the Commission of alleged scientific or legal developments that, in the years subsequent to the alleged discrimination he contends somehow retrospectively undermine the respondents 2021 vaccine mandate.

• [46] In the simplest of terms, for a complaint of discrimination in relation to e.g., the attribute of impairment, Mr Barbagallo need only establish that:

1. He has or had an impairment within the meaning of the AD Act;

1. The respondent subjected him to less favourable treatment; and

1. The less favourable treatment was on the basis of his impairment.

• [47] In those circumstances the alleged developments in foreign or interstate legal jurisdictions, or variations in medical opinions about vaccines set out in the submissions of Mr Barbagallo, have no relevance to allegations of discrimination said to have occurred as a consequence of the implementation of the respondent's vaccine mandate and their subsequent termination of Mr Barbagallo's employment.

• [48] For a successful complaint of discrimination in these circumstances, Mr Barbagallo does not need to successfully justify his refusal to comply with the Directive and nor does the respondent need to justify its lawfulness or reasonableness. Mr Barbagallo only needs to prove that the implementation of the Directive and the disciplinary process that followed was less favourable treatment than that which would have applied to someone without the attribute.

• [49] On the question of novelty, paragraph 24 of Mr Barbagallo's submissions read as follows:

...my complaint seeks to explore the meaning of discrimination on the basis of characteristics, specifically direct discrimination for my characteristic of medical treatment anxiety, hesitancy, and non-vaccination status which are generally caused by my impairment and religious belief...

• [50] If Mr Barbagallo intended a novel argument, then he has failed to make that known in his submissions. Mr Barbagallo appears to be suggesting that his vaccine hesitation is a product of 'medical treatment anxiety'. It is not clear, but one reading of his submission might be that he seeks to argue that vaccine hesitation is characteristic of this anxiety and therefore the mandate and his ultimate dismissal for non-compliance was less favourable treatment on the basis of that attribute.

• [51] Whatever the case might be, the alleged 'novel' argument pertaining to s 8 of the AD Act is never plainly made out in Mr Barbagallo's submissions. Indeed, it appears from the material filed that the poorly structured 'novel' discrimination argument is merely a 'trojan horse' designed simply to get Mr Barbagallo access to the Commission where his colleagues reinstatement applications have failed. And what appears to be waiting inside that trojan horse, ready to be disgorged on the Commission, is the same suite of tedious, unmeritorious, detritus that has been dismissed already, many times over.

Merits of the discrimination complaints more generally

• [52] Even in circumstances where Mr Barbagallo was able to link characteristics such as anxiety to vaccine hesitancy to the attribute of impairment, or to establish some other characteristic linked to e.g. religious beliefs, he is still required to prove the elements of s 10 of the AD Act. That is to say, Mr Barbagallo would be required to prove that he was subjected to less favourable treatment than a person without the attribute would have been treated in the same or not materially different circumstances.

• [53] Section 10 of the AD Act invariably requires the identification of a comparator to determine whether its elements are met. While the proper comparator can often be a vexed issue, in this instance it would not be unreasonable to anticipate that, using the example of the attribute of religious belief, the proper comparator would be a person also covered by the Directive, without religious belief, and who also did not comply with a reasonable and lawful direction

• [54] The Commission as currently constituted made similar observations in Triplow:[20]

[66] Putting to one side the absence of adequate evidence of 'impairment', there are additional difficulties evident with respect to Mr Triplow 's complaint of discrimination.

[67] Mr Triplow must also prove he was treated less favourably 'on the basis of' his impairment. While it is not entirely clear, it seems the termination of his employment is central to his allegation of less favourable treatment. The full text of s 10 of the AD Act requires a comparator to establish 'less favourable' treatment i.e., less favourably than another person without the attribute would be treated in the same circumstances.

[68] Identifying a proper comparator is always a vexed issued. In this matter, the 'same circumstances' might include an employee without a medical contraindication to vaccination who has failed to comply with a lawful and reasonable direction to be vaccinated. Alternatively, it might simply be an employee without an impairment who has failed to comply with a reasonable and lawful direction. In either case, it is patently clear that Mr Triplow's fate was no different to the likely fate of any employee who failed to comply with the direction, regardless of impairment.

[69] To demonstrate further the misconceived nature of Mr Triplow's complaint, he cites in his rebuttal document filed 26 September 2023 (at page 3) that the respondent allowed two other employees an exemption on the basis of medical contraindication. He complains this is differential treatment. Mr Triplow fails to appreciate that this very scenario is inconsistent with discrimination on the basis of impairment. As the respondent points out in the statement of Ms Zeidler, the distinction between Mr Triplow and the two other employees was the adequacy of the evidence of impairment relied on to support their exemption applications, not the impairment. And having satisfactorily proved their impairments, those employees were exempted.

[70] In those circumstances, Mr Triplow is entirely unable to establish any evidence of less favourable treatment on the basis of his alleged impairment.

[71] This leads then to consideration of the remaining element, namely discrimination 'on the basis of' a prescribed attribute. In simple terms, Mr Triplow contends he was the subject of discrimination i.e., dismissed on the basis of his impairment.

[72] The chain of emails that are exhibited to the statement of Ms Zeidler plainly reveal that the decision to terminate Mr Triplow was because he failed to comply with the direction. To the extent it relates to the decision to dismiss Mr Triplow, there was an email exchange preceding the show cause and termination correspondence through which Mr Triplow was informed of the inadequacy of Dr Palla's certificate to support an exemption.

[73] It must be noted that evidence from the respondent as to its mindset on Mr Triplow 's alleged impairment is not yet fully before the Commission and has not been tested. However, there are extensive exhibits of relevant correspondence between Mr Triplow and the respondent that give clear insight into the motives for the conduct of the respondent.

[74] While it is important not to take the respondent's case 'at its highest' when contemplating the discretion given by s 541 of the IR Act, there is equally no requirement to take their case at its lowest. In a balanced consideration of interests, unless there was some compelling contradictory evidence, there should be no reason why the Commission could not rely on relevant contemporaneous correspondence as evidence of the reasons why a respondent took certain action.

[75] This respondent's conclusions about Dr Palla's certificate were not the basis of the dismissal. Further, their conclusions were entirely neutral as to the existence or otherwise of any impairment. As already discuss above, the inadequacy of Dr Palla's medical certificate as proof of a medical contraindication is objectively indisputable. Further, the failure to secure an exemption (on the grounds of an alleged impairment) was not the basis for Mr Triplow 's dismissal. To the extent it might be argued to be an indirect influence on the decision, it was the inadequate evidence of impairment (not the alleged impairment itself) that caused the exemption to be refused.

[76] Having regard to the email correspondence chain preceding the dismissal, it appears quite plainly that it was Mr Triplow's failure to comply with a lawful and reasonable direction that was, exclusively, the basis upon which his employment was terminated. In the circumstances, it is readily apparent that even on the case presented by Mr Triplow, the essential elements of a claim of impairment discrimination cannot be made out.

[77] Further, Mr Triplow 's submissions in response to this application have not persuaded the Commission that he has any evidence or arguments that might alter this otherwise compelling conclusion.

[78] Beyond the difficulties confronting Mr Triplow 's primary complaint of discrimination, it is prudent that the Commission consider any other matters relevant to Mr Triplow 's interests before reaching a conclusion on the exercise of the discretion to dismiss proceedings.

• [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 to Mr Barbagallo. 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.[21]

• [56] It has equally been commonly observed by the Commission that there was a singular and uniform approach by the first respondent in respect of the implementation of the Directive, and more importantly, the treatment of its employees who failed to comply. The reasons for non-compliance were unique to each employee, yet the treatment and outcomes for each of them was all but identical. Where the treatment of other non-compliant employees was so uniform, it is impossible to appreciate how Mr Barbagallo might succeed in demonstrating his treatment was 'less favourable'.

• [57] Further, even if Mr Barbagallo were able to successfully develop the basis for a complaint using some 'novel' submission e.g., that links his 'characteristic' of vaccine hesitancy to anxiety etc, and even if one puts aside the problem he has in demonstrating 'less favourable' treatment, he still has to prove that he was subjected to the less favourable treatment was 'on the basis of' the attributes he cites.

• [58] More particularly, in order for the treatment to be 'on the basis of' his cited attributes, Mr Barbagallo needs to prove they were the reason or a substantial reason for his treatment.[22]

• [59] Of course, anything can seem possible in the mind of a misguided litigant embarking ambitiously on misconceived litigation. If one lets the imagination run wild, then it can be accepted that it is possible that the decision makers' real or substantial reason for refusing Mr Barbagallo's exemption request, putting him through a show cause process, and terminating his employment was all because of (or on the basis of) his anxiety about medical treatment his religious beliefs etc. The notion of a 'possibility' can include even those theories that are ridiculous. But Mr Barbagallo needs to prove these things on the balance of probability which is a far more onerous onus to discharge than a mere possibility.

• [60] In order to have any hope of success Mr Barbagallo would have to prevail in any allegation of direct discrimination in the factual setting of the events which he contends is the less favourable treatment. In particular, Mr Barbagallo will have to contend, in this case, with the factual realities of a global pandemic involving a highly contagious and potentially deadly virus, and the measures adopted by society to mitigate against it. These facts will sit indisputably at the base of the factual matrix considered by the Commission in these proceedings. At the forefront of those measures adopted by society is the development of safe and effective vaccines, endorsed by the scientific and medical communities, both nationally and internationally, and by governments at all levels.

• [61] On that factual background we then have the implementation of the Directive by the respondent that applied to all of its tens of thousands of employees, and which was plainly for the purposes of inter alia discharging significant statutory safety duties it held.[23]

• [62] Finally, there is the well documented and plainly procedurally fair process applied to Mr Barbagallo with respect to his request for an exemption and the subsequent show cause process and dismissal ostensibly because he failed, without good reason, to comply with a lawful and reasonable direction.

• [63] In order for Mr Barbagallo to succeed in a complaint of discrimination, he would need to overcome the very compelling inference that can be drawn from the indisputable facts of this matter i.e. he would need to prove to the requisite standard that the imposition of the mandate and his eventual dismissal was something other than a legitimate and fair process, that applied equally to every employee regardless of unique attributes, to manage the risk of injury or death in that workplace.

• [64] In those circumstances, the 'possibilities' contemplated above can be seen as nothing more than the subjective view of Mr Barbagallo no doubt distorted by his personal sense of injustice.

• [65] As previously observed in Triplow, the exercise of the discretion to dismiss proceedings ought not to include a consideration of the respondent's case at its highest. But it is equally not necessary to take it at its lowest.[24]

• [66] The various documents attached to Mr Barbagallo's written complaint includes much of the now familiar correspondence used by the respondent with its employees in dealing with processes relevant to refusal of exemptions, show cause for non-compliance, and termination of employment for non-compliance.[25] While there is some degree of 'template' style, each example attached to Mr Barbagallo's written complaint demonstrates clear and comprehensive consideration of his individual circumstances. Nothing about that material gives any hint of a proscribed motive. In the circumstances, where the first respondent's multiple correspondence supporting the process leading to Mr Barbagallo's dismissal is demonstrably consistent with a disciplinary process implemented for failure to follow a lawful and reasonable direction, the Commission should not be required to give serious regard to Mr Barbagallo's case theories that represent little more than fanciful possibilities.

• [67] To the extent that Mr Barbagallo intends to argue the actions of the respondent are discrimination, it must be his case theory that the real or substantial reason for the various events he complains about was on the basis of his impairment or religious beliefs etc. He would need to prove that on the balance of probabilities.

• [68] Having regard to the indisputable facts already before the Commission, and the documents evidencing the processes to which Mr Barbagallo was subject and the purported reasons, it can confidently be concluded that allowing Mr Barbagallo to 'explore' his case theory in evidence would all but certainly be an exercise in futility. And it would absolutely not be in the public interest.

The Human Rights Act complaint

• [69] For completeness it ought to be noted that Mr Barbagallo also contends that the respondent has contravened the HR Act and has, in the style typical of litigants of this cohort, provided a veritable 'shopping list' of rights that have allegedly been contravened.

• [70] I do not intend to waste any more resources or time on considering these complaints in detail. Suffice to say I have read and considered them, and I can conclude with confidence that if any (or all) of the identified rights had been contravened (which they have not) the exemptions available by virtue of the operation of s 13 of the HR Act undoubtedly apply.

• [71] To be clear, the presence of a global pandemic involving a virus capable of causing serious illness or death demonstrably justified the implementation of the vaccine mandates notwithstanding they may serve to limit prescribed human rights. Evaluating the balance between the importance of the purpose of the limitation i.e. to prevent illness and death in the community as against the impact on Mr Barbagallo, there can be no question as to the lawfulness of the imposition of the mandate. It is important to remember here that the mandate did not compel Mr Barbagallo to be vaccinated. It was imposed as a health and safety requirement for his continued access to his workplace. He was entirely free to exercise his right to refuse and he did.

• [72] To whatever extent his human rights might have been limited, the limitation was demonstrably justified pursuant to s 13 of the HR Act. The obvious absence of merit accompanying Mr Barbagallo's human rights complaint renders the hearing of his complaint void of any public interest.

• [73] The signature style of almost every litigant contesting mandatory vaccination in workplaces has been the excessive complication and obfuscation of simple propositions. It typically occurs in the style of verbose submissions, traversing multiple grounds for objection.
• [74] Invariably the basis for refusing to comply with a vaccine mandate was never singular. There is a significant coincidence amongst such litigants where they are unable to be vaccinated for reasons that they are e.g. devoutly religious and afflicted with a medical condition which they insist is a contraindication for vaccination.

• [75] When the antecedent facts of the demise of Mr Barbagallo's employment relationship are traced back to their origins, it is precisely these two grounds that emerge as his stated reasons for his non-compliance. And then, also in typical fashion, as the exemption process gives way to the disciplinary process, the objections that were once simple, morph into evermore complex arguments in an (understandably) desperate attempt to resist the sanction of dismissal. But as is also typically the case, when those arguments are deconstructed, they invariably reveal themselves to be the same simple and flawed propositions they always were.

• [76] The most recent iteration of submission presented by Mr Barbagallo in this interlocutory application have the added but unhelpful feature of extensive legalese that attempts (but fails) to legitimise the potpourri of nonsense argued by Mr Barbagallo.

• [77] The simple fact of this matter is that Mr Barbagallo expressed his opposition to vaccination from the outset. He is entirely at liberty to hold that view and to stand by it. But his commitment to that belief could not co-exist with the significant duty of his employer to maintain the safety of their staff and patients in the workplace, a duty discharged by imposing the mandate.

• [78] Nothing novel arises out of the circumstances of these proceedings. Mr Barbagallo has simply sought a different avenue to argue the same arguments. The fact that he might possess protected attributes simultaneous to the implementation of the mandate and subsequent disciplinary process for non-compliance does not give rise to a probable causal connection. Moreover, the fact that the vast majority of Mr Barbagallo's equally non-compliant colleagues were subject to the same directive, process, and sanction, is an overwhelming compelling fact that counters his complaint.

• [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-complaint employees.

• [80] The prevailing priority of community health and safety and the essential significant steps taken by the respondent to protect its patients and staff were uniquely justified because of the pandemic. Despite the imposition of terms that were personally adverse to some individuals like Mr Barbagallo, the necessity to protect the wider community creates an unassailable barrier such that this claim (and any others like it) are inevitably futile and, it follows, not in the public interest for the Commission to hear.

• [81] Having due regard to all of the circumstances, it is the order of the Commission that:

Proceeding AD/2024/4 is dismissed in its entirety pursuant to s 541(b)(ii) of the Industrial Relations Act 2016 (Qld).

[1] Application in proceedings filed 8 March 2024, annexure A, paragraph 53.

[2] There are some brief descriptions in Part C and E of the complaint form though, as pleadings, they are not clear.

[3] See for example: Brassell-Dellow & Ors v State of Queensland (Queensland Police Service) & Ors [2021] QIRC 356; Mocnik & Ors v State of Queensland (Queensland Health) [2023] QIRC 058; Thorley v State of Queensland (Department of Education) [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; Brailey v State of Queensland (Department of Education) [2022] QIRC 401; Graf and Ors v State of Queensland (Department of Education] [2022] QIRC 451; Triplow v Leidos SAR Services Pty Ltd [2024] QIRC 12; Janulewicz v State of Queensland (Queensland Health) [2023] QIRC 026.

[4] [2019] ICQ 18 [26] - [29].

[5] [2014] ICQ 006 [21] - [22].

[6] [2024] QIRC 12 ('Triplow').

[7] [2023] QIRC 058.

[9] Mackenzie v State of Queensland (Queensland Health) [2023] QIRC 121.

[11] Western Sydney University v Thiab [2023] NSWCA 57.

[12] [2024] QSC 2.

[15] [2024] QIRC 38 [13].

[16] See Applicant's submissions filed 15 April 2024, paragraph 24.

[17] See Applicant's submissions filed 15 April 2024, paragraph 24.

[18] See Form 85 - referral of a matter - 'Complaint form' - Part D.

[19] See for example Applicant's submissions filed 15 April 2024, from paragraph 36 which is largely a regurgitation of the merits of Mr Barbagallo's reasons for not being vaccinated.

[21] Stacey v State of Queensland (Department of Education) [2024] QIRC 220 [35] - [38].

[22] Anti-Discrimination Act 1991 (Qld) s 10(4).

[23] Work Health and Safety Act 2011 (Qld) pt 2.

[25] Form 85 - referral of a matter - see Attachments 6 and Attachments 10-22.