Radanovic v State of Queensland

Public Sector Act 2022 (Qld) s 131

Carr v State of Queensland (Department of Education) [2024] QIRC 210

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

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

Sankey v State of Queensland (Department of Education) [2024] QIRC 197

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

Delivered ex tempore, revised from transcript

• [1] Mr Shane Radanovic is employed as a teacher with the Department of Education ('the Department') at Innisfail State College. Mr Radanovic was subject to the employment directive that required him to comply with a direction to receive COVID vaccinations in order to enter his workplace ('the Direction').[1] Mr Radanovic did not comply.

• [2] To the extent that it is relevant to this appeal, the reasons for Mr Radanovic's noncompliance are, inter alia, a belief that he was or should be exempt as a result of a possible anaphylactic reaction to vaccination. More broadly, his submissions at the hearing of this matter reveal a mixed and varied additional collection of other reasons why he contends he should not have been required to have a vaccine.

• [3] The material filed in this appeal demonstrates a well-documented procedurally fair process that was undertaken by the Department in relation to its treatment of Mr Radanovic. From the time of the directions application, Mr Radanovic has had every opportunity to present evidence of his medical contraindications and to respond to show cause processes that were activated by his noncompliance.

• [4] Relevantly, Mr Radanovic has not appealed any previous decisions in relation to his noncompliance with the directive. This would have included decisions regarding his exemption request and a decision finding him liable for disciplinary action.

• [5] On 1 August 2022, Mr Radanovic was advised of a finding that he had contravened a direction without reasonable excuse and that the decision-maker was considering whether to impose disciplinary action, namely, a temporary reduction in remuneration and a reprimand. That correspondence clearly reveals that Mr Radanovic was advised of his appeal rights in respect of that decision. Mr Radanovic did not appeal that decision.

• [6] In response to that correspondence, Mr Radanovic provided a comprehensive 'show cause' response on 8 August 2022. In essence, his response was that he had already been suspended for a period without pay and had therefore already endured a financial penalty.

• [7] Additionally, Mr Radanovic responded to the show cause request by making submission to the effect that he had, in fact, qualified for an exemption, but had not been able to address that due to a variety of circumstances. Secondly, that he relied on mitigating factors including prior exemplary conduct which also included Mr Radanovic being awarded a bravery award in relation to his conduct in the course of his employment. His submissions also alluded to various human rights breaches, personal trauma, and the fact that he was a recognised school leader. All of these submissions are in the nature circumstances that might act to mitigate the penalty.

• [8] On 22 August 2022, Mr Radanovic was advised of a decision to impose a penalty of temporary reduction in remuneration for a period of 18 weeks and a reprimand. It is this decision that Mr Radanovic seeks to appeal.

• [9] On 18 April 2024, the Registry issued directions to the parties pursuant to section 562A(3) of the Industrial Relations Act 2016 (Qld) ('IR Act') requiring Mr Radanovic to file submissions addressing why the Commission should hear his appeal.

• [10] These proceedings concern whether the Commission should exercise the discretion granted to it by section 562A to not hear the appeal.

562A Commission may decide not hear particular public service appeals

(3) The commission may decide it will not hear a public service appeal against a decision if -

(a) the appellant has made an application to a court or tribunal relating to the decision, whether or not the application has been fully decided; or

(b) the commission reasonably believes, after asking the appellant to establish by oral or written submissions that the appellant has an arguable case for the appeal, that the appeal -

(i) is frivolous or vexatious; or

(ii) is misconceived or lacks substance; or

(iii) should not be heard for another compelling reason.

• [12] The parties have filed written submissions in these proceedings.

• [13] Mr Radanovic filed written submissions on 13 May 2024 in response to the direction for submissions pursuant to section 562A(3) of the IR Act. To demonstrate why he considered he had an arguable case, Mr Radanovic relied on a number of different grounds.

• [14] Firstly, Mr Radanovic sought to rely on the recent decision of 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) ('Johnston').[2] That decision dealt with the validity of vaccine mandates that applied to the Queensland Police Service and the Queensland Ambulance Service.

• [15] Mr Radanovic contended that this decision enlivened his previous human rights contentions. Mr Radanovic further contended that he had a right to a risk assessment and to be shown scientific data of the efficacy of the vaccines.

• [16] Mr Radanovic's submissions also addressed the fact that the decision that had been issued on 22 August 2022 appeared to be a form of 'mail merge' correspondence in template form, which lacked reasons and did not address his personal circumstances.

• [17] He further submitted that he had been addressed inconsistently in respect of penalties and that one correspondence referred to 20 weeks' reduction of remuneration, whilst another talked of 18 weeks.

• [18] He further submitted that he did not receive a court order requiring him to be vaccinated.

• [19] Additionally, and more broadly, Mr Radanovic made a series of other submissions alleging coercion, human rights breaches, and other challenges to the necessity of vaccines or the safety they provide.

• [20] The respondent's submissions filed on 17 June 2024 contended the matters raised by Mr Radanovic were more of the same types of arguments that the Commission had addressed time and time again over the last two years.

• [21] The submissions made by the respondent were well-supported with references to the multiple relevant authorities which (if he had read them) would have placed Mr Radanovic on notice as to the veracity of the submission made by the respondent. The respondent further contended that the decision to reduce Mr Radanovic's pay had been reached in a procedurally fair way.

• [22] In his reply submissions filed on 3 July 2024, Mr Radanovic largely reiterated a number of his earlier submissions, albeit in a slightly different form. He again submitted, apparently, that he had an arguable case because there had been a lack of consultation and a lack of risk assessment undertaken or, at least, demonstrated to him. He further submitted that the decision was unfair and unreasonable because he had lost wages and leave entitlements already.

• [23] Mr Radanovic also contended that he and his partner had experienced personal trauma, that he was not treated as an individual by virtue of the template correspondence that did not address his personal circumstances.

• [24] Somewhat uniquely, Mr Radanovic submitted that the Department was the only department punishing people. He further submitted that new medical evidence available says said that vaccine efficacy and vaccine mandates are now in question and, again, that he had received no court order saying that he must get vaccinated.

• [25] Before turning to address the matters raised in the submissions by the parties, I will firstly address the matter of the limitations on the Commission's jurisdiction when dealing with such appeals.

• [26] It has not been my clear impression in this appeal that Mr Radanovic was seeking to overturn the decision that he was liable for discipline, although the submissions, in their broader context, would appear to suggest this. To the extent that it is necessary to be clear, I note that section 562B of the IR Act provides that:

562B Public service appeal to commission is by way of review

(1) This section applies to a public service appeal made to the commission.

(2) The commission must decide the appeal by reviewing the decision appealed against.

(3) The purpose of the appeal is to decide whether the decision appealed against was fair and reasonable.

• [27] The reference to the decision under review is singular and therefore the jurisdiction, in any given appeal, is limited to a review of the decision appealed against, and only that decision.[3]

• [28] Where an earlier decision has been made that finds that an employee is liable to discipline and that decision is not appealed, it is not open for the employee (or the Commission) to directly revisit the decision in an appeal against a subsequent decision on penalty. That is not the jurisdiction granted to the Commission. Notwithstanding this conclusion, it may be open for the Commission to have regard to an earlier disciplinary finding for the purpose of evaluating whether it warrants the penalty being imposed by a subsequent decision.

• [29] Turning now to the grounds of the appeal relied on by Mr Radanovic in support of his argument for an arguable case. Across various submissions filed in these proceedings, Mr Radanovic has identified multiple grounds to demonstrate, what he says, is the evidence for his arguable case. It is most efficient if I deal with each of these in turn.

• [30] Firstly, in relation to submissions about the decision of Johnston, this decision is of no assistance to Mr Radanovic in an appeal against the penalty imposed for his failure to comply with a reasonable direction, or at all. The decision in Johnston relates to the status of a wholly different directive and cannot be relied on to undermine the validity or otherwise of the directive applicable to Mr Radanovic.

• [31] Further, on the question of human rights, Johnston largely rejects that the mandates in that matter restricted a range of human rights considered but further, concluded that to the extent they did, that the restriction is demonstrably justified in accordance with the terms of s 13 of the Human Rights Act 2019 (Qld) ('HR Act').[4]

• [32] Secondly, while it is not clear to what extent Mr Radanovic still presses these matters, his submissions regarding consultation, risk assessment and vaccine efficacy are equally irrelevant to a decision in relation to penalty and, further, in any event, misconceived and plainly contrary to the well-established authorities already delivered by this Commission and available to Mr Radanovic for some time now.[5]

• [33] Thirdly, the submission that Mr Radanovic did not receive a court order compelling him to have a vaccine is irrelevant to a review of a penalty decision. Mr Radanovic is now well passed the phase whereby he can make any challenge to the lawfulness of the direction. Further, the submission is misconceived in that it plainly demonstrates that Mr Radanovic misunderstands the authority vested in any employer to give lawful and reasonable directions to an employee without the need for a court order.[6]

• [34] Fourthly, Mr Radanovic submits there was a 'confused approach' in the correspondence in relation to the penalty in that one correspondence proposed 20 weeks' reduction in remuneration, whilst the other imposed an 18-week reduction in remuneration. Whilst it was not entirely clear, Mr Radanovic appears to be confusing the proposed penalty/show cause letter, with the penalty decision letter i.e. the decision. Mr Radanovic fails to appreciate that the employer was plainly influenced by his submissions in response to the show cause letter in respect of the penalty that was proposed and reduced it by 2 weeks.

• [35] Mr Radanovic also contends that the decision letter of 22 August 2022 did not address his personal circumstances and, therefore, denied him procedural fairness and, additionally, lacked reasons. The identical submission was made by the appellant in the decision of Sankey v State of Queensland ('Sankey').[7] In that matter, Commissioner Gazenbeek dealt with the same submission.[8] I would respectfully adopt those conclusions with respect to Mr Radanovic's submission. That is to say, the fact that the decision-maker did not descend into the minutiae of the matters contended by Mr Radanovic, does not invalidate that decision.

• [36] Additionally, I note that the submission of the appellant in the Sankey matter that was reproduced at paragraph 45 of that decision bore a striking resemblance to the language of the submission accompanying Mr Radanovic's notice of appeal. On further examination of the Appeal Notice filed in the matter of Sankey, it reveals that Mr Radanovic (or those advising him at the time) have, apparently without any sense of irony, used template submissions to criticise template correspondence.

• [37] More generally, to the extent that Mr Radanovic alleges that he was coerced, I find firstly, that is not relevant to a decision in relation to penalty and secondly, that the submission is misconceived. I refer again to the decision of Sankey which, again, addressed an identical submission in that matter.[9]

• [38] In respect of Mr Radanovic's submission that the Department was the only one imposing penalties, I'm not entirely certain upon what basis Mr Radanovic makes the submission, but that is entirely inconsistent with the practice of other departments with which the Commission is well familiar and, as I informed Mr Radanovic at the hearing, the expected penalty for an employee who, without good reason, fails to comply with a lawful and reasonable direction, is the termination of employment.[10]

• [39] In all of the circumstances, I consider that Mr Radanovic has failed to demonstrate he has an arguable case. I consider that the matters raised by Mr Radanovic are either misconceived, irrelevant to the decision under review, or matters that have been exhaustively dealt with by this Commission in previous decisions.

• [40] Subsequent to the ex tempore decision delivered in this matter, I delivered the decision of Stacey v State of Queensland (Department of Education) ('Stacey').[11] At the conclusion of Stacey,[12] I made the following observations which are apposite to this appeal:

In Tilley v State of Queensland (Queensland Health) ('Tilley') I made the following observation:

[33] The Commission's resources must be reserved for matters of genuine controversy. They ought not to be made available to unreasonable individuals who, despite overwhelming legal precedent and accepted mainstream medical and scientific opinions, insist on arguing (and re-arguing) the same tedious points in a vain attempt to have their baseless views affirmed, or to delay the inevitable sanctions awaiting them for their non-compliance with a lawful direction.

My observations in Tilley are even more pertinent one year on.

The pandemic produced unique and surreal experiences for everyone, in every aspect of life. One of the more unusual experiences was the requirement to mandate vaccines for employees throughout large sections of the public sector. The imposition of such an intrusive requirement was not undertaken whimsically and was a well-considered response to manage the potentially harmful and even deadly effects of Covid-19. There can be no suggestion that mandates were anything but controversial. They represent a personal and physical intrusion unprecedent in the lives of all affected. For many people, mandates were anxiety inducing and traumatic.

But the vast majority of the employees affected (not to mention the general population) willingly complied and were vaccinated. Often this was not because they knew or believed vaccines were effective (or even safe). For the most part, people unqualified to understand the science complied because their sense of responsibility to the society in which they live was such that they were prepared to put aside their objections and their personal concerns for the greater good of the community.

No doubt this would reflect the approach of many of Mr Stacey's colleagues who complied. And it would be a gross injustice to those employees if their reprobate peers went unpunished.

For that reason, there is something deeply repugnant about the continued abuse of the Commission's resources by individuals who have refused, without good cause, to comply with a lawful and reasonable direction, and who continually seek to avoid responsibility for their choices. Despite the freely available and innumerable decisions from this Commission dismissing the same spurious arguments that he now advances, Mr Stacey insists on pressing arguments that are plainly doomed to fail for all of the same reasons.

A common feature of litigants in such matters is that their submissions are entirely devoid of any evidence that they have read and considered the relevant authorities, or made any attempt to objectively evaluate the merits of their appeals. Instead, they press ahead with their ill-informed arguments and, in doing so, deprive genuine litigants the opportunity to have their matters dealt with by the Commission in a timelier manner. A greater abuse of the Commission's resources is hard to imagine.

The conduct of such litigants both collectively and individually is an affront to the administration of justice. For over two years now the Commission has been dismissing these matters and repeatedly citing its earlier decisions explaining why. Yet these appeals keep coming because the appellants in most instances refuse to read or accept anything that does not assist their cause.

The extent to which such matters have diverted and drained the resources of the Commission, and the continued pattern of persistent obstinance demonstrated by such litigants is such that there is, in my view, clear justification to depart from the usual practice of giving extensive reasons for decision. Despite the discretion afforded by s 562A of the IR Act, the drain on resources to simply explain why appeals will not be heard is just as significant as hearing them.

Mr Stacey can consider himself fortunate. Fortunate in that he has escaped a proper penalty for his misconduct. Fortunate in that he can continue with his career. And now, fortunate that he was given the valuable time of the Commission to prepare these extensive reasons at the expense of other litigants awaiting their opportunity to have their genuine controversies determined.

To the extent Mr Stacey's employment is rendered more tenuous by virtue of the reprimand now on his record, that is a small price to pay for an employee who has demonstrated no insight and no remorse for wilfully refusing to comply with a lawful and reasonable direction.

• [41] Mr Radanovic would do well to reflect on these observations and on the multitude of authorities that comprehensively contradict his flawed narrative of unfairness. He has the good fortune to enjoy continued employment with the Department in circumstances where there was compelling justification for dismissal.

• [42] There is nothing unfair or unreasonable about his penalty and, for that compelling reason, I decline to hear his appeal.

• [43] For all of the above compelling reasons, I decline to hear the appeal and I make the following order:

Pursuant to s 562A(3) of the Industrial Relations Act 2016 (Qld) I decline to hear the appeal in matter PSA/2022/766.

[1] Department of Education Employment Direction 1/21 - COVID-19 Vaccinations.

[2] [2024] QSC 2.

[3] Carr v State of Queensland (Department of Education) [2024] QIRC 210; Stacey v State of Queensland (Department of Education) [2024] QIRC 220.

[4] 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, [286]-[379]. See also Mocnick & Ors v State of Queensland (Queensland Health) [2023] QIRC 058.

[5] 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.

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

[7] [2024] QIRC 197.

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