State of Queensland (Department of Education) v Johnston
[2024] ICQ 18
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- Unreported Judgment
- Appeal Determined (QCA)
- State of Queensland (Department of Education) v Johnston[2024] ICQ 18
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State of Queensland (Department of Education) v Johnston[2024] ICQ 18
State of Queensland (Department of Education) v Johnston[2024] ICQ 18
INDUSTRIAL COURT OF QUEENSLAND
CITATION: | State of Queensland (Department of Education) v Johnston [2024] ICQ 18 |
PARTIES: | STATE OF QUEENSLAND (DEPARTMENT OF EDUCATION) (appellant) v BENJAMIN JAMES JOHNSTON (respondent) |
FILE NO: | C/2024/19 |
PROCEEDING: | Appeal |
DELIVERED ON: | 5 September 2024 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 1 August 2024 |
MEMBER: | Davis J, President |
ORDER: | Appeal dismissed |
CATCHWORDS: | INDUSTRIAL LAW – QUEENSLAND – RECORDS AND WAGES – PROTECTION AND RECOVERY OF WAGES – where the respondent was a school teacher – where the respondent was suspended whilst awaiting the outcome of criminal proceedings whereby he was the defendant – where during a portion of the suspension period the respondent was denied renumeration – where the respondent was found not guilty of the criminal proceedings – where the respondent sought reimbursement by application to the Queensland Industrial Relations Commission (QIRC) for the period the respondent was suspended without renumeration – where the QIRC granted the respondent’s application – where the appellant appeals – where the appellant relies on the Directive 06/23 Suspension (the Directive) – where the appellant alleges the respondent falls within the exception under clause 10.5 of the Directive – where the appellant alleges the respondent was not “available for work” during the suspension period and thereby not entitled to reimbursement – whether the definition of “available for work” is limited to the purpose for which the employee was employed – whether the appellant could have provided alternative roles for the respondent to perform during the suspension period – whether the potential for the respondent to perform alternative roles means the respondent fails to fall within the exception contained in clause 10.5 and thereby entitled to reimbursement Education (Queensland College of Teachers) Act 2005 (Qld), s 2, s 3, s 48, s 52, s 67, s 82, s 92, s 97, s 159, s 160 Industrial Relations Act 2016 (Qld), s 557, s 562B, Sch 5 Public Sector Act 2022 (Qld), s 3, s 4, s 16, s 90 to s 96, s 100, s 101, s 102, s 212, s 228 Public Service Act 2008 (Qld), s 137 |
Automatic Fire Sprinklers Pty Ltd v Watson (1946) 72 CLR 435; [1946] HCA 25, cited Byrnes v Kendle (2011) 243 CLR 253; [2011] HCA 26, followed Carr v State of Queensland (Department of Education) [2023] ICQ 12, considered Johnston v State of Queensland (Department of Education) [2024] QIRC 11, related R v A2 (2019) 269 CLR 507; [2019] HCA 35, followed Winter v State of Queensland (Department of Education) [2022] QIRC 350, considered | |
COUNSEL: | CJ Murdoch KC with C Martin for the appellant G Rebetzke for the respondent |
SOLICITORS: | GR Cooper, Crown Solicitor for the appellant Holding Redlich Lawyers for the respondent |
- [1]The State appeals a decision of the Queensland Industrial Relations Commission (QIRC) setting aside a decision made within the Department of Education (the Department) disallowing wages to an employee which accrued whilst he was suspended.
Background
- [2]Benjamin James Johnston, the respondent, is a school teacher.
- [3]Mr Johnston was employed as a teacher at Park Ridge State High School. He held a teaching position at that school since February 2015.
- [4]On 10 August 2020, Mr Johnston was charged by police with a number of sexual offences which were alleged to have occurred in a private residence. There was no connection between the offending and his employment.
- [5]Mr Johnston was suspended from duty on 13 August 2020 with remuneration. Some 17 months later, on 25 January 2022, Mr Johnston was required to show cause why he should not be suspended without pay. He responded to the show cause notice but on 3 February 2022, he was suspended without pay. Suspension on those terms was extended from time to time.
- [6]A trial of the criminal charges against Mr Johnston occurred in the District Court at Ipswich and he was acquitted of all counts on 8 March 2023.
- [7]Teachers in Queensland must hold registration pursuant to the Education (Queensland College of Teachers) Act 2005 (College of Teachers Act). When Mr Johnston was charged, his registration was suspended.
- [8]On 8 May 2023 the Department wrote to Mr Johnston advising:
- that the decision-maker within the Department “[does not] hold the reasonable belief that [Mr Johnston] is liable to discipline”;
- Mr Johnston’s registration remains suspended by the Queensland College of Teachers;
- Mr Johnston’s suspension made under s 101(1)(a) of the Public Sector Act 2022[1] would end;
- Mr Johnston would be suspended pursuant to s 101(1)(b) of the Public Sector Act 2022; and
- the suspension would be with renumeration.
- [9]When Mr Johnston was suspended, his employment was subject to the Public Service Act 2008. By the time his original suspension was lifted and he was suspended with pay,[2] the Public Service Act had been repealed and the Public Sector Act had been enacted and proclaimed.
- [10]Section 101 of the Public Sector Act vests a power in the chief executive to suspend an employee from duty where he reasonably believes:
“(a) the employee is liable to discipline under a disciplinary law; or
- the proper and efficient management of the entity might be prejudiced if the employee is not suspended.”[3]
- [11]There was an equivalent section in the Public Service Act. It was s 137. There are transitional provisions in the Public Sector Act, the effect of which is that a suspension decision made under the Public Service Act continues as if it were a decision made under the Public Sector Act.
- [12]The effect of the decisions of 8 May 2023 was to:
- lift the suspension pursuant to the equivalent to s 101(1)(a) of the Public Sector Act on the basis that the chief executive no longer held a reasonable belief that Mr Johnston was liable to discipline;
- suspend Mr Johnston on the grounds that as he did not have an operative teacher’s registration, the proper and efficient management of the Department would be prejudiced if he was not suspended; and
- reinstate Mr Johnston’s renumeration from 8 May 2023.
- [13]Mr Johnston then turned his mind to recovery of his salary for the 16 months[4] when he was suspended without pay. He caused his solicitors to write to the Department seeking reimbursement.
- [14]In place at that time was a directive that concerns suspension of government employees. It is Directive 06/23 Suspension (the Directive).
- [15]The Department determined that Mr Johnston was not eligible for reimbursement as a result of the terms of the Directive. On 29 May 2023, the Department wrote to Mr Johnston in these terms, relevantly:
“Clause 10.1 of the Directive states that ‘An employee must be reimbursed for remuneration the employee does not receive during the employee’s suspension if a decision on discipline has been made, or the disciplinary process has been concluded, and does not result in termination of their employment.’
At this stage, while I do not hold the reasonable belief that you are liable for discipline under a disciplinary law based on the information currently available to me, I have not made a final decision on the matter. As stated in my letter dated 8 May 2023, the Department of Education is making enquiries into your criminal matters to determine whether there are grounds for a workplace investigation and / or discipline process. It is important to note that while you have been found not guilty on all criminal charges, your conduct may still constitute grounds for discipline upon review. It is also relevant that your QCT[5] teacher registration remains suspended due to the conduct that was subject to the criminal proceedings.
Further, even if the disciplinary process had been concluded, you would not be entitled to reimbursement for the relevant period as you were not available to work during that period.
Clause 10.5 of the Directive states that ‘If the employee was not available to work during the period of suspension for reasons other than being suspended (for example, due to being detained in a corrective services facility), then the amount repaid to the employee must be less the total number of days that the employee was not available to work during the period of suspension.’
As your QCT teacher registration was suspended throughout the relevant period, you were not available to work during that time for reasons other than your suspension, as you were prohibited from teaching pursuant to the Education (Queensland College of Teachers) Act 2005.”
- [16]Mr Johnston appealed that decision to the QIRC, who made the following orders:
“That pursuant to s 562C(1)(c) of the Industrial Relations Act 2016 (Qld):
- The appeal is allowed.
- The decision of 29 May 2023 is set aside and another decision is substituted.
- The Respondent is to reimburse the Appellant the amount he has been deprived of for the period of suspension without remuneration, from 3 February 2022 to 7 May 2023.”[6]
The scope of the appeal to this Court
- [17]The statutory task for the QIRC on hearing Mr Johnston’s public service appeal[7] was to determine whether the decision of the Department was fair and reasonable.[8] This the QIRC did[9] and in the process held that on a proper construction of the Directive, the Department was not prohibited from allowing Mr Johnston payment of salary accrued during the period he was suspended without pay.
- [18]Although the QIRC made various findings, it is only the conclusions concerning the construction of the Directive which are the subject of the appeal. The grounds of appeal are:
“1. The Commission erred in law in determining that the decision appealed against was not “fair and reasonable” by wrongly deciding that Mr Johnston was “available to work” during the period of his suspension for the purposes of clause 10.5 of Directive 06/23 Suspension, in circumstances where Mr Johnston was prohibited by law from performing his work as a teacher during the period of his suspension.
- The Commission erred in law in failing to determine that the decision appealed against was “fair and reasonable” because the decision, having been made in accordance with clause 10.5 of Directive 06/23 Suspension, was not other than ‘fair and reasonable’.”
- [19]As the appeal was argued there was only one question, which was whether on a proper construction of the Directive, Mr Johnston was “available to work during the period of suspension”. The relevant period of suspension is the period of 16 months during which Mr Johnston was suspended without pay.
- [20]There is a right of appeal against a decision of the QIRC on the ground of an error of law.[10] If the QIRC has erred in its construction of the Directive, then it has committed an error of law.
The statutory context
Public Sector Act 2022
- [21]The main purposes of the Public Sector Act 2022 are described by s 3:
“3 Main purpose of Act
The main purpose of this Act is to provide a framework for a fair and integrated public sector that serves the people of Queensland and the State.”
- [22]Section 4 explains how the objects are sought to be achieved, which includes the establishment and maintenance of a public sector. Part of the scheme of establishing and maintaining a public sector is Part 8 headed “Work performance and conduct”. Division 3 of Part 8 headed “Disciplinary action” establishes a disciplinary regime.
- [23]
- [24]Sections 90, 91 and 92 establish a common structure for discipline and one which was present in the Public Service Act. Section 90 defines certain terms. Section 91 prescribes various “grounds for discipline” and then empowers the chief executive to discipline the employee if “reasonably satisfied” that a ground exists. Section 92 then identifies, in a non-exhaustive way, what disciplines may be imposed.
- [25]
- [26]Subdivision 5 of Division 3 of Part 8 concerns “procedure”. Section 100 provides that the Commissioner may issue directives about investigating grievances and managing disciplinary action.[15] Division 4 of Part 8 is entitled “Suspension”. It contains only two sections, being ss 101 and 102:
“101 Suspension
- A public sector employee’s chief executive may, by notice, suspend the employee from duty if the chief executive reasonably believes—
- the employee is liable to discipline under a disciplinary law; or
- the proper and efficient management of the entity might be prejudiced if the employee is not suspended.
- The notice must state—
- when the suspension starts and ends; and
- whether the employee is entitled to remuneration for the period of the suspension; and
- the effect that alternative employment may, under subsection (5), have on any entitlement to remuneration for the period of the suspension.
- However, before suspending the employee, the chief executive must consider all reasonable alternatives available to the employee.
Examples of reasonable alternatives which may be available to the employee—
• alternative duties
• a change in the location where the employee performs duties
• another alternative working arrangement
- The employee is entitled to normal remuneration for the period of the suspension, unless—
- the employee is suspended under subsection (1)(a); and
- the employee’s chief executive considers it is not appropriate for the employee to be entitled to normal remuneration for the period of the suspension, having regard to the nature of the discipline to which the chief executive believes the employee is liable.
- If the employee is entitled to normal remuneration for the period of the suspension, any amount earned by the employee from engaging in alternative employment during the period of the suspension must be deducted from the employee’s normal remuneration, unless—
- the employee was engaged in the employment at the time of the suspension; and
- the employee, in engaging in the employment, was not contravening—
- this Act; or
- a standard of conduct applying to the employee under an approved code of conduct or approved standard of practice under the Public Sector Ethics Act 1994.
- The deduction under subsection (5) must not be more than the amount of the employee’s normal remuneration during the period of the suspension.
- The continuity of the employee’s service as a public sector employee is taken not to have been broken only because of the suspension.
- The chief executive may cancel the suspension at any time.
- In suspending a public sector employee under this section, the chief executive must comply with the directive made under section 102.
- Procedural fairness is not required if the employee is entitled to normal remuneration during the suspension.
102 Directive about suspension
- The commissioner must make a directive about procedures relating to suspension from duty of public sector employees.
- The directive must make provision for the following matters—
- the periodic review by public sector entities or the commissioner of suspensions being considered or undertaken by a chief executive of a public sector entity, including, for example, the period within which reviews must be conducted to ensure the timely resolution of suspension matters;
- how the requirements of procedural fairness may be met in relation to decisions about suspensions, including, for example, requirements about providing reasons for decisions about suspensions;
- the circumstances in which a chief executive of a public sector entity may, under section 101(4)(b), decide a public sector employee is not entitled to normal remuneration for the period of the suspension of the employee;
- any other matter about procedures relating to suspension from duty of public sector employees the chief executive considers appropriate.
- The directive may make provision for the circumstances, and the way, in which a person may be reimbursed after a decision is made about whether or not the employee is liable for discipline for any remuneration the person does not receive during the person’s suspension.” (emphasis added)
- [27]Section 101, as earlier observed, vests a power to suspend in the chief executive.
- [28]Section 100 vests in the Commissioner a power to make directives about “managing disciplinary action”[16]. That is not intended to authorise directives about suspension. There is a specific power to give directions about suspension and that is vested and regulated by s 102. The Direction was issued pursuant to s 102[17] on 1 March 2023.
- [29]Section 228 of the Public Sector Act recognises an obvious limitation to the power of the Commissioner to issue directives. By that section, subordinate legislation prevails over the Directive to the extent of any inconsistency.[18]
- [30]The Directive applies to “public sector employees”.[19] Therefore, it applies to and is binding upon Mr Johnston.
- [31]By clause 8 of the Directive:
“8. Suspension without remuneration
8.1 A chief executive may decide that normal remuneration is not appropriate during a suspension under section 101(1)(a). This decision will usually occur after a period of suspension with remuneration but may be made from the start of the suspension.
8.2 Having regard to the nature of the discipline in accordance with section 101(4)(b) of the Act, the circumstances in which a chief executive may decide a public sector employee is not entitled to normal remuneration for the period of the suspension of the employee are limited to where:
a. there are factors not within the control of the agency that are preventing the timely conclusion of the discipline process, for example if there are criminal charges and the investigation or discipline process is pending the outcome of these charges; or
b. it is otherwise fair and reasonable to suspend an employee without remuneration, taking into account the financial impact on the employee and the broader public interest of the employee remaining on suspension with remuneration.”[20]
- [32]Clause 9 provides the procedural fairness considerations that apply to the making of any decision to suspend an employee without remuneration. Clause 10 then provides:
“10. Reimbursement when employee has been suspended without normal remuneration
10.1 An employee must be reimbursed for remuneration the employee does not receive during the employee’s suspension if a decision on discipline has been made, or the disciplinary process has been concluded, and does not result in termination of their employment.
10.2 The amount to be reimbursed is the employee’s normal remuneration at the date of suspension without pay for the period the employee was without remuneration during the suspension, taking into account any increase due to certified agreements or rulings made in stage wage cases.
10.3 An employee who ceases employment prior to a decision on discipline being made is not entitled to reimbursement.
10.4 Any amount earned by the employee from alternative employment the employee engaged in during the period of suspension must be deducted from the amount repaid to the employee under 10.2 above, unless:
a. the employee was engaged in the employment at the time of the suspension, and
b. the employee, in engaging in the employment, was not contravening:
i. the Act, or
ii. a standard of conduct applying to the employee under an approved code of conduct or standard of practice under the Public Sector Ethics Act 1994.
10.5 If the employee was not available to work during the period of suspension for reasons other than being suspended (for example, due to being detained in a corrective services facility), then the amount repaid to the employee must be less the total number of days that the employee was not available to work during the period of suspension.” (emphasis added)
- [33]Any suspension is made under s 101. The chief executive has the power to suspend and may exercise the power where, relevantly here, they reasonably believe the employee is “liable to discipline”. That then relates back to s 91 and the “grounds for discipline”, relevantly here, ss 91(1)(b)[21] and 91(5)(b).[22] Section 101(4) provides the circumstances under which a decision may be made to suspend without remuneration. That is a power also vested in the chief executive but it is quite limited. The only relevant consideration is the appropriateness of the employee receiving remuneration during suspension “having regard to the nature of the discipline to which the chief executive believes the employee is liable”.
- [34]Section 101(5) provides (as does the Directive) for a setoff of remuneration during the period of suspension. However, s 101(5) applies in different circumstances to clause 10 of the Directive. Section 101(5) only applies where the employee is suspended with normal remuneration. There is no provision in s 101 which entitles an employee to recover remuneration not paid, but where the disciplinary action fails. Section 102(3) provides that a directive may provide for reimbursement and the circumstances in which that should occur. The exercise of the power of the Commissioner to direct as to reimbursement is discretionary. The Commissioner may make provision by directive for such things. This is in contrast to s 102(1). The Commission “must make a direction about procedures relating to suspension…”.
- [35]Therefore, any right to reimbursement is sourced (at least initially) not through any decision of the chief executive under s 101 but by exercise of power in the Commissioner to issue a directive. The function of the chief executive is to follow and apply any directive. The decision the subject of the present appeal appears to be a decision of a delegate of the chief executive. It seems common ground that the source of the power of the chief executive to make any decision in relation to reimbursement is the Directive.
- [36]The chief executive has not exercised any discretion vested by the Directive in relation to renumeration. The decision of the chief executive was that there was no power in the chief executive to grant back pay as Mr Johnston was not “available for work”.
The Education (Queensland College of Teachers) Act 2005
- [37]The College of Teachers Act has as its main objectives:
“3 Main objects of Act
- The main objects of the Act are—
- to uphold the standards of the teaching profession; and
- to maintain public confidence in the teaching profession; and
- to protect the public by ensuring education in schools is provided in a professional and competent way by approved teachers. …”
- [38]Those objects are sought to be achieved in various ways including by establishing the Queensland College of Teachers (the College)[23] and establishing a system of registration of teachers by the College[24] which includes provision for suspension and cancellation of registration.[25] Section 48 of the College of Teachers Act provides:
“48Effect of charge for serious offence, temporary offender prohibition order or interim sexual offender order
- This section applies if, after the relevant commencement, an approved teacher is charged with a serious offence.
Note—
See also section 343 (Effect of serious offence charge before relevant commencement).
- This section also applies if an approved teacher is or becomes a relevant excluded person because the teacher is or becomes subject to a temporary offender prohibition order or interim sexual offender order.
- The college must, immediately after it becomes aware of the charge or order, suspend the teacher’s registration or permission to teach.”
- [39]Upon Mr Johnston being charged, his registration was suspended in reliance upon s 48.
- [40]Chapter 5 is headed “Practice and conduct matters”. Like the Public Sector Act, it sets up a disciplinary regime.
- [41]Section 92 prescribes grounds for disciplinary action and then, if the College “reasonably believes” that a disciplinary ground exists, the College commences “practice and conduct proceedings” which is in effect a referral of the disciplinary ground to the Queensland Civil and Administrative Tribunal (QCAT).[26] Section 92(2) of the College of Teachers Act provides:
“92 Grounds for disciplinary action
- Each of the following is a ground for disciplinary action against a relevant teacher—
- the relevant teacher has been convicted of an indictable offence that is not a serious offence, or an offence against this Act, except if, in relation to the conviction, the teacher becomes a relevant excluded person;
Note—
See section 56 for action that may be taken against an approved teacher who becomes a relevant excluded person.
- both of the following apply—
- the teacher is incompetent in performing the work of a teacher;
- the teacher is dismissed, or resigns, from employment in Queensland as a teacher in circumstances that, in the opinion of the teacher’s employer, call into question the teacher’s competency in performing the work of a teacher;
- if the teacher was registered as a teacher in another State—the teacher’s registration in the State was cancelled or suspended;
- if the teacher was employed as a teacher in another State that does not register teachers—the teacher’s employment as a teacher in the State was terminated because the teacher’s employer was reasonably satisfied the teacher was not competent or suitable to be employed as a teacher;
- the teacher did not possess or no longer possesses the qualifications and experience relied on by the teacher to obtain registration or permission to teach;
- the person behaves in a way, whether connected with the teaching profession or otherwise, that does not satisfy the standard of behaviour generally expected of a teacher;
- the teacher fails to comply with a lawful demand made under this Act by the college, an investigator or a practice and conduct body;
- the teacher contravenes—
- an order made under this Act by the college or a practice and conduct body; or
- a practice and conduct agreement.
- The ground for disciplinary action mentioned in subsection (1)(h) is taken to apply to a relevant teacher whose registration or permission to teach is suspended under section 48 if any of the following applies—
- the teacher has been charged with a serious offence and the charge has been dealt with;
- the teacher has been charged with a serious offence and the teacher is convicted of an offence other than an indictable offence;
- the teacher is or becomes subject to a temporary offender prohibition order or interim sexual offender order.
- The object of subsection (2) is to ensure the circumstances of the change are examined by a practice and conduct body.
- Subsection (2) does not limit the application of subsection (1)(h).
- In this section—
dealt with, in relation to a charge against a relevant teacher for a serious offence, means any of the following—
- the relevant teacher is acquitted of the charge;
- the charge has been withdrawn or dismissed;
- a nolle prosequi or no true bill is presented in relation to the charge.” (emphasis added)
- [42]Therefore, both an acquittal and a conviction for a serious offence constitutes disciplinary action. While it might appear odd that an acquittal provides a ground for discipline, the policy behind s 92(2) is no doubt driven by the fact that in Queensland, the onus of proving a criminal offence is upon the prosecuting authority, so a verdict of “not guilty” is not a finding of innocence but a finding of a failure of proof beyond reasonable doubt. This policy position is confirmed to a point by s 92(3).
- [43]A suspension imposed under s 48 is not lifted upon acquittal of the charges. It can only be lifted by order of QCAT after a practice and conduct proceeding.[27]
- [44]It is common ground that until the suspension is lifted, Mr Johnston is prohibited from teaching in a State school and the State is prohibited from allowing him to teach in a State school.[28]
Was Mr Johnston “available to work during the period of suspension”?
- [45]In Byrnes v Kendle[29], Heydon and Crennan JJ analysed various authorities where different species of legal documents had been construed. The analysis demonstrated that in all circumstances, the issue of intention of the authors (or parties or legislators as the case may be) was determined by the objective interpretation of the words used in the documents. That exercise will be undertaken against the relevant context and having regard to purpose.[30] Those principles apply to the construction of the Directive.
- [46]The College of Teachers Act is not a factor in the construction of the Directive. The Directive is made pursuant to the Public Sector Act. The Directive operates generally in relation to public service employees, not only those governed by the College of Teachers Act. As the Directive was given pursuant to the Public Sector Act, the terms of the Public Sector Act are context against which to construe the document.
- [47]There are two questions which arise in the interpretation of the words chosen and used by the Commissioner in the Directive. The first is the meaning of the word “available”. Does “available” mean physically available to perform work, or does it mean that the employee, in all the circumstances, is physically able and legally entitled to do the work? If it is the former, then the second question does not arise. If it is the latter, then the second question is as to the meaning of the term “work” in clause 10.5. Does “work” mean any work, or does “work” mean the work which, under the contract of employment between the employer (here, the State) and the employee (here, Mr Johnston), the employee undertook to perform? As will be seen, the two questions overlap.
- [48]The word “available” is defined in the Macquarie Dictionary as:
“adjective 1. suitable or ready for use; at hand; of use or service: available resources.
2. having sufficient power or efficacy; valid.
3. Obsolete profitable; advantageous.
–availableness, noun
–availably, adverb” [31]
- [49]Mr Johnston’s case is that he was available in that he was “at hand” to work. He was one of those who “… also serve” as they “stand and wait”.[32] The State’s construction is that “work”, being the work for which Mr Johnston must be “available”, is his work as a teacher and he was not available to do that work as he was legally prohibited from doing so.
- [50]In my view, the construction proposed by Mr Johnston is strongly supported by the Directive taken as a whole against the context of the Public Sector Act.
- [51]By s 101(4) of the Public Sector Act, where a public service employee is suspended, they are entitled to remuneration over the period of the suspension. That position is disturbed where the suspension is made on disciplinary grounds[33] and the circumstances in s 101(4)(b) exist. Section 101(4)(b) requires the chief executive to have regard to one consideration, namely “the nature of the discipline to which the chief executive believes the employee is liable”.
- [52]Clause 8.2 of the Directive reinforces the position that the “norm” is that remuneration ought to be paid. By clause 8.2, which is relevant to the interpretation of the Directive as a whole, the decision to deny remuneration is “limited” to circumstances where either:
- there are factors preventing the timely conclusion of the discipline process; or
- it is otherwise fair and reasonable, but taking into account financial impact on the employee and the broader public interest of the employee remaining on suspension with remuneration.
- [53]There is nothing in either s 101(4) of the Public Sector Act or clause 8.2 which suggests that a legal impediment or prohibition to perform the work for which the employee who was employed is a relevant factor, let alone a decisive one, in the determination under s 101(4) to deny remuneration while the disciplinary proceedings are continuing.
- [54]In other words, absent the limited circumstances of s 101(4) as applied pursuant to clause 8.2 of the Directive, remuneration would have to be paid notwithstanding that Mr Johnston did not have a right to teach.
- [55]By clause 10.1, the employee who is suspended without remuneration must be reimbursed if the disciplinary process ultimately does not result in termination. The right to reimbursement is linked to the employee’s success (at least to the extent of maintaining employment) in the “disciplinary process”. Section 101(4) gives a power to the chief executive to suspend without pay having regard to “the nature of the discipline to which the chief executive believes the employee is liable”. Obviously, if that is termination the discretion to suspend without remuneration will arise. Then clause 10.1 of the Directive gives a right to reimbursement (subject to clauses 10.3, 10.4 and 10.5) where termination is not the result of the disciplinary process. The “disciplinary process” is the process under Part 8 of the Public Sector Act, not any disciplinary process taken under the College of Teachers Act.
- [56]What each of clauses 10.3, 10.4 and 10.5 of the Directive do is provide exceptions to the general rule under clause 10.1.
- [57]Clause 10.3 provides that the right to reimbursement only subsists while the employer and employee relationship exists. Clause 10.4 prevents the employee from “double dipping” in relation to remuneration. If the employee earns remuneration, it must be set off against money otherwise payable under clause 10.1 of the Directive. Clause 10.4 mirrors s 101(5) of the Public Sector Act so that employees suspended without remuneration who earn money during the period of suspension are not in a better position than those employees who are suspended with remuneration.
- [58]There is, in my view, nothing to suggest that clause 10.5 would require an employee to be legally entitled to perform the specific work they were employed to do in order to be relevantly “available”. That is not a precondition to payment of remuneration to an employee who is suspended with remuneration. Remuneration may only be suspended in the circumstances prescribed by clause 8.2 of the Directive. There is no mention there of remuneration being suspended if the employee becomes legally disentitled to work. There are only two reasons prescribed by clause 8.2 for denying remuneration. One is unforeseen delay. The second is that it is “otherwise fair and reasonable”. Even if suspension of a licence to do the work was a relevant consideration of what is “fair and reasonable”, that is still not determinative. The chief executive must still consider the financial position of the employee and the public interest.
- [59]The obvious intention of the Public Sector Act and the Directive is that reimbursement to an employee who was suspended without remuneration is prima facie dependent upon success of the employee in the disciplinary proceedings. The exceptions to that position (clauses 10.3, 10.4 and 10.5) are in my view very narrow.
- [60]Clause 10.5 gives one example of an employee not being “available”. That is when the employee is in custody and physically unable to work in the public sector. That employee would not be “at hand” to work.
- [61]The State relies on Winter v State of Queensland (Department of Education)[34], a decision of the QIRC and also Carr v State of Queensland (Department of Education)[35], a decision of this Court. Both are cases where the impact of COVID-19 vaccination directions were considered. Winter was decided on the papers without oral argument. In both cases the employee was not legally represented. Neither case evidences a detailed examination of the proper construction of the term “available” in the context of Directive: 16/20 - Suspension Directive, which was the predecessor to the Directive.[36]
- [62]In both cases the employee refused to be vaccinated contrary to a specific direction, thus rendering themselves incapable of performing any available role. In both cases it was held that the unvaccinated employee was “unavailable” to work.
- [63]It is unnecessary to finally determine whether Winter and Carr were correctly decided, but they probably were. Given the example of unavailability mentioned in clause 10 (incarceration), it is clear that inability to physically attend work renders an employee “unavailable”. An employee who deliberately refuses to comply with a prerequisite to the ability to work is clearly not “at hand”. For practical purposes it is as if the employee had absented themselves physically.
- [64]That is not the case here. Mr Johnston has done all things necessary to make himself available to work. He is “at hand”. There is an intervening statutory prohibition which has arisen preventing him from working. As explained, on a proper construction of the Directive, he remains “at hand” to work and is not relevantly “unavailable”.
- [65]The “work” for which an employee must be “available” is not limited to the work for which the employee was employed. That is clear from s 101. An employee is employed in a particular position to perform particular work. By s 101(1), the employee is suspended “from duty”. The term “duty” is not defined but taken in context it must mean “all work”. That is because by s 101(3), the chief executive must consider “alternative duties” in alternative working roles before suspending the employee.
- [66]Where the chief executive is specifically required to consider roles alternate to that for which the employee is employed, it can’t be that an employee is not “available for work”, only because they can’t perform the specific work for which they were employed.
- [67]It doesn’t matter that no alternative role was available to Mr Johnston. He was “available for work” in the sense that he was available to perform physical exertion for the State in exchange for renumeration.
- [68]In my view, on a proper construction of the Directive, Mr Johnston became entitled to reimbursement of remuneration once the disciplinary process was concluded in his favour. He was, over the period of the suspension, at hand to work and was therefore “available to work”. He did not fall within the exception under clause 10.5 of the Directive.
Conclusion
- [69]For the reasons explained, clause 10.5 of the Directive did not disentitle Mr Johnston to reimbursement of renumeration over the period of his suspension.
- [70]It follows that both grounds of the appeal fail and the appeal ought to be dismissed.
- [71]Neither party sought costs.
Order
- [72]Appeal dismissed.
Footnotes
[1] An equivalent of s 137(1)(b) of the Public Service Act 2008.
[2] 8 May 2023.
[3]Public Sector Act 2002, s 101(1); the full section appears at paragraph [26] of these reasons.
[4] 3 February 2022 to 7 May 2023.
[5] A reference to the ‘Queensland College of Teachers’.
[6]Johnston v State of Queensland (Department of Education) [2024] QIRC 11.
[7]Industrial Relations Act 2016, Sch 5, definition of “public service appeal”.
[8]Industrial Relations Act 2016, s 562B(3).
[9]Johnston v State of Queensland (Department of Education) [2024] QIRC 11.
[10]Industrial Relations Act 2016, s 557.
[11]Public Sector Act 2022, s 212.
[12]Public Sector Act 2022, s 16(a).
[13]Public Sector Act 2022, ss 93-96.
[14] Part 8, Division 3, subdivision 2.
[15]Public Sector Act 2022, s 100(1).
[16]Public Sector Act 2022, s 100.
[17] The Directive also refers to s 222, but that is not relevant in the present context.
[18]Public Sector Act 2022, s 228(1).
[19] Paragraph 3.1(a).
[20] Underlining appears on the Directive as published.
[21] Guilty of misconduct.
[22] “Misconduct” in s 91(5)(b) is defined as “inappropriate or improper conduct in a private capacity that reflects seriously and adversely on the public sector entity in which the employee is employed”.
[23] Section 3(2)(a) and Chapter 10.
[24] Section 3(2)(b) and Chapter 2.
[25] Relevantly here, s 48.
[26]Education (Queensland College of Teachers) Act 2005, s 97.
[27]Education (Queensland College of Teachers) Act 2005, s 52.
[28]Education (Queensland College of Teachers) Act 2005, ss 67, 82(2).
[29] (2011) 243 CLR 253.
[30]R v A2 (2019) 269 CLR 507 at [31]-[37].
[31] Macquarie Dictionary, 9th ed (2023) at p 96.
[32]Automatic Fire Sprinklers Pty Ltd v Watson (1946) 72 CLR 435 at 466.
[33]Public Sector Act, s 101(1)(a).
[34] [2022] QIRC 350
[35] [2023] ICQ 12.
[36] Clause 6.6 of Directive 16/20 is equivalent to Clause 10.1 of Directive 06/23 and Clause 6.10 of Directive 16/20 is identical to Clause 10.5 of Directive 06/23.