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

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Triplow v Leidos SAR Services Pty Ltd [2024] QIRC 12
PARTIES:	Triplow, Andrew (Complainant) v Leidos SAR Services Pty Ltd (Respondent)
CASE NO:	AD/2023/28
PROCEEDING:	Application in existing proceedings
DELIVERED ON:	24 January 2024
MEMBER: HEARD AT:	Dwyer IC On the papers
ORDER:	*1. Pursuant to section 541(b)(ii) of the Industrial Relations Act 2016 (Qld)* matter number AD/2023/28 is dismissed.**
CATCHWORDS:	DISCRIMINATION LEGISLATION – HUMAN RIGHTS – GENERALLY – complaint of discrimination on the basis of impairment – where the Complainant is employed by Leidos SAR Services Pty Ltd as a Drop Master – where COVID-19 Vaccination Requirements for Workers in a High-Risk Setting Direction required the Complainant to receive the first dose of a COVID-19 vaccine by 17 December 2021 and the second dose of a COVID-19 vaccine by 23 January 2022 – where Complainant did not comply with direction – where Complainant provided a medical certificate as evidence of a medical contraindication to COVID-19 vaccines – where Complainant was advised the medical certificate was insufficient to provide a medical contraindication to COVID-19 vaccines – inadequate evidence of impairment - matter otherwise has no prospects of success – matter dismissed
LEGISLATION: CASES:	Anti-Discrimination Act 1991 (Qld), s 7, s 8, s 10, s 11, s 15, s 124, s 164, s 166, s 174B, s 178, Schedule 1 Australian Constitution, s 51, s 109 Biosecurity Act 2015 (Cth) COVID-19 Vaccination Requirements for Workers in a High-Risk Setting Direction Human Rights Act 2019 (Qld), s 12, s 13, s 17, s 19, s 75, Subdivision 3, Part 4 Industrial Relations Act 1999 (Qld), s 331 Industrial Relations Act 2016 (Qld), s 541 Public Health Act (Qld) 2005 (Qld) Work Health and Safety Act 2011 (Qld), Divisions 1 – 4 Campbell v State of Queensland (Department of Justice and Attorney-General) [2019] ICQ 18 Elliott v State of Queensland (Queensland Health) [2022] QIRC 332 Graf v State of Queensland (Department of Education) [2022] QIRC 451 Kassam v Hazzard; Henry v Hazzard [2021] NSWCA 29 State of Queensland v Lockhart [2014] ICQ 00

Reasons for Decision

Introduction

On 11 January 2022, Mr Andrew Triplow complained to the Queensland Human Rights Commission ('the QHRC') that Cobham Aviation Services Australia Pty Ltd ('Cobham') discriminated against him on the basis of impairment in contravention of the Anti-Discrimination Act 1991 (Qld) ('the AD Act').[1]
[1] Anti-Discrimination Act 1991 (Qld), ss 7(h), s 10, s 11 and s 15.
In circumstances set out later in these reasons, Mr Triplow was subsequently granted leave to amend his complaint to substitute Cobham with 'Leidos SAR Services Pty Ltd' ('the respondent') who was his employer at all relevant times.

Mr Triplow was employed by the respondent as a Drop Master in the Cairns Airport precinct at the time his employment was terminated on 23 December 2021. Mr Triplow’s termination occurred in circumstances where he failed to comply with a direction to be vaccinated against COVID-19.
The direction to be vaccinated against COVID-19 was issued pursuant…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Triplow v Leidos SAR Services Pty Ltd

Details

AGLC: Triplow v Leidos SAR Services Pty Ltd [2024] QIRC 12
Case: [2024] QIRC 12
Decision Date: 24 January 2024

CaseChat Overview and Summary

In the case of Triplow v Leidos SAR Services Pty Ltd, the applicant, Triplow, brought a complaint against his employer, Leidos SAR Services Pty Ltd, alleging discrimination on the basis of impairment. The dispute arose from the employer's enforcement of the COVID-19 Vaccination Requirements for Workers in a High-Risk Setting Direction, which mandated that Triplow receive the first and second doses of a COVID-19 vaccine by specified dates. Triplow did not comply with this direction and provided a medical certificate as evidence of a medical contraindication to the vaccines. The employer deemed the medical certificate insufficient, leading to Triplow's dismissal. The Federal Circuit and Family Court of Australia was tasked with determining whether the employer's actions constituted discrimination under the relevant anti-discrimination legislation.

The primary legal issues before the court were whether Triplow's dismissal constituted discrimination on the basis of impairment and whether the employer's reliance on the inadequacy of the medical certificate amounted to less favourable treatment. The court had to assess if Triplow had demonstrated that he was treated less favourably because of his alleged impairment, and if the employer's decision to terminate his employment was influenced by this impairment rather than by his failure to comply with the vaccination direction. The court also needed to consider the adequacy of the evidence provided by Triplow to support his claim of a medical contraindication.

In its decision, the court found that Triplow had not established a case of discrimination on the basis of impairment. The court noted that Triplow failed to demonstrate any less favourable treatment on the basis of his alleged impairment. It was established that two other employees were granted exemptions based on medical contraindications, but the distinction between Triplow and those employees was the adequacy of the evidence provided to support their exemption applications. The court concluded that the employer's decision to terminate Triplow was based on his failure to comply with the vaccination direction rather than his alleged impairment. The inadequacy of the medical certificate provided by Triplow was an objective and undisputed issue, and the employer's conclusions about the certificate did not constitute discrimination.

The court dismissed the complaint under section 541(b)(ii) of the Industrial Relations Act 2016 (Qld), finding that the matter had no prospects of success. The court considered that the evidence did not support a finding that Triplow was treated less favourably on the basis of his impairment and that the employer's actions were justified by Triplow's non-compliance with the vaccination direction.

Orders

Orders of the court

1. Pursuant to section 541(b)(ii) of the Industrial Relations Act 2016 (Qld) matter number AD/2023/28 is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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.[15] And having satisfactorily proved their impairments, those employees were exempted.[15] Application in existing proceedings filed 31 July 2023. See attached Outline of Submissions at paragraph [20]. In those circumstances, Mr Triplow is entirely unable to establish any evidence of less favourable treatment on the basis of his alleged impairment. 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. 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. 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.[16] [16] Statement of Kathleen Zeidler filed 31 July 2023, Exhibits ‘KZ-2’ – ‘KZ-9’. 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. 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.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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