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Hackett, Roderick James v State of Queensland (Public Safety Business Agency)[2021] QIRC 202

Hackett, Roderick James v State of Queensland (Public Safety Business Agency)[2021] QIRC 202

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION

Hackett, Roderick James v State of Queensland (Public Safety Business Agency) [2021] QIRC 202

PARTIES:

Hackett, Roderick James

(Appellant)

v

State of Queensland (Public Safety Business Agency)

(Respondent)

CASE NO:

PSA/2021/198

PROCEEDING:

Public Service Appeal – Fair Treatment Appeal

DELIVERED ON:

4 June 2021

HEARD AT:

MEMBER:

Mention held 1 June 2021, matter determined on the papers.

Pidgeon IC

OUTCOME:

  1. The decision is set aside; and
  1. The decision is substituted with a decision that Mr Hackett's long service leave (taken) be re-credited and that Mr Hackett be taken to have been on sick leave from 13 November 2020 until 7 March 2021 as per the medical certificate provided by Dr Michael Fleming dated 18 January 2021.

CATCHWORDS:

PUBLIC SERVICE APPEAL – Appeal against a decision under a directive – whether the appellant was entitled to relocation expenses – where there are varied policies

LEGISLATION:

Industrial Relations Act 2016, s 562C

Public Service Act 2008, s 25, s 54

Minister for Industrial Relations Directive: Long Service Leave (Directive 11/18)

Minister for Industrial Relations Directive: Sick Leave (Directive 06/20)

Commission Chief Executive directive: Senior Officers – Employment Conditions (Directive 11/17)

Reasons for Decision

Background and Timeline of Events

  1. [1]
    Mr Hackett is employed by the State of Queensland (the Respondent) as a Director of Fleet Assests (SO3) in Brisbane with the Public Safety Business Agency (PSBA).
  1. [2]
    On 14 January 2020, Mr Hackett lodged separation paperwork.  It was Mr Hackett's intention to take longer term pre-retirement leave in the form of recreation leave and long service leave prior to retirement.  Mr Hackett says that he provided this advance notice in good faith to allow sufficient time for the employer to arrange relieving arrangements before his departure on long service leave on 2 March 2020.
  1. [3]
    During Mr Hackett's leave, he saw his treating medical officer and was referred to an Orthopaedic Surgeon whom he saw on 13 November 2020.  The surgeon referred Mr Hackett for investigative procedures including an MRI.  Mr Hackett says that he thought he would have another appointment shortly after the scans and would be able to seek a medical certificate at that time which would provide more detail of the diagnosis and duration of his incapacity.
  1. [4]
    Mr Hackett was unable to see the surgeon again until 18 January 2021 when his diagnosis of adhesive capsulitis was confirmed by the MRI results and he was given a medical certificate.[1]  The medical certificate states that Mr Hackett is suffering from 'left shoulder adhesive capsulitis' and will be unfit for duty up to and including 7 March 2021 with the incapacity commencing on 13 November 2020.
  1. [5]
    Mr Hackett says he spoke with Mr Hyde (General Manager Assets and Procurement) by telephone on 27 January 2021 to advise of his circumstances and intent to apply and convert a period of long service leave to sick leave. Mr Hyde arranged for Mr Hackett to be emailed the appropriate sick leave application form which he competed and returned on that same day.
  1. [6]
    On 15 February 2021, Mr Hackett was advised that Mr Hyde had decided not to grant sick leave instead of long service leave for a period from 13 November 2020 until 17 January 2021 and to approve the sick leave from 18 January 2021 to 7 March 2021.
  1. [7]
    Mr Hackett says that he raised his concerns with this decision locally and was informed that the decision was made on HR advice.
  1. [8]
    On 2 March 2021, with the assistance of his union, Mr Hackett escalated his concerns to the decision maker, Mr Paul Hyde and Human Resources Officer, Mr Cameron Hurren.
  1. [9]
    In response, the decision maker raised concerns about the timing of his request with respect to when he first sought medical attention and asked for further medical information. Mr Hackett responded to these concerns through his union and provided further medical certification from his treating Orthopaedic Specialist on 15 April 2021.  That further advice was provided in a letter under the hand of Dr Michael Fleming dated 24 March 2021:

This is to certify that I first reviewed Mr Roderick Hackett on the 13th November 2020 for both a left shoulder and left knee condition.

His left shoulder diagnosis is adhesive capsulitis. Mr Hackett had symptoms of adhesive capsulitis on presentation.

I organised for him to have investigations and he was next reviewed on the 18th January 2021.

The diagnosis of adhesive capsulitis prevented Mr Hackett from performing his usual duties.

Accordingly this certificate would declare that Mr Roderick Hackett was totally incapacitated for work from the 13th November 2020 until the 7th March 2021 with the diagnosis being adhesive capsulitis for the left shoulder.[2]

  1. [10]
    Mr Hackett says that his union wrote to Mr Hyde and Mr Hurren and senior HR officers in the Agency on another five occasions seeking a review of the decision and consideration of the new information.
  1. [11]
    On 27 May 2021, Mr Gary Patterson, Director, Employee Relations, provided a decision:

We have had further discussions with the delegate in regards to the request for the granting of sick leave in lieu of previously taken long service leave for the 3 month period prior to the initial medical certificate received.  The delegate has concerns relating to the timeliness of the notification and of the medical certificate.

Following consideration of the additional information provided the delegate is not prepared to approve the request.  In the circumstances we support this decision.

  1. [12]
    It is this decision Mr Hackett appeals.

Grounds for Appeal

  1. [13]
    Mr Hackett considers the decision to deny his request for sick leave to be granted instead of long service leave was unfair and unreasonable because:
  1. a)
    The reasons provided are insufficient.
  1. b)
    The decision maker has failed to explain the significance of, and his reliance on, the timeliness of my request.
  1. c)
    The reliance on timeliness by the decision maker was unfair and unreasonable.
  1. d)
    The decision maker appears to have not considered or inappropriately weighted relevant considerations and/or considered irrelevant considerations.
  1. e)
    The decision maker has not fairly balanced the factors he considered to deny the request against the impacts on me and the reasons for my request.
  1. f)
    The outcome is unfair considering the legislative scheme and the purpose of the entitlement and the relevant statutory instruments and my long and meritorious service with the employer.
  1. g)
    The way the employer has dealt with my initial request and my request for a review of the decision was unfair and unreasonable in the circumstances for example by denying my request on the basis of timeliness while not providing timely responses to my requests.
  1. h)
    The decision maker does not appear to have considered my responses or the additional information I have provided or has inappropriately weighted this information.
  1. [14]
    After the appeal was allocated to me on 1 June 2021, I enquired as to the date of Mr Hackett's retirement from the PSBA.  Upon hearing that Mr Hackett's retirement date is 7 June 2021, I called the matter on for an urgent mention to ascertain the parties' interest in attending a conference to discuss the matter further or in the event a conference was not deemed desirable, whether the parties would like to make submissions at a hearing of the matter or would prefer the matter to be held on the papers.   The parties agreed that the matter could be heard on the papers but both committed to make themselves available on short notice for a hearing should I determine one was necessary.
  1. [15]
    I issued directions that the Respondent file written submissions by 4.00pm on 2 June 2021 and that the Appellant file submissions in reply by 4.00pm on 3 June 2021 with a view to hearing the matter prior to Mr Hackett's date of retirement.
  1. [16]
    In deciding this appeal, s 562C(1) of the Industrial Relations Act 2016 (IR Act) provides that the Commission may:
  1. (a)
    confirm the decision appealed against; or

  1. (b)
    For another appeal-set the decision aside, and substitute another decision or return the matter to the decision maker with a copy of the decision on appeal and any directions considered appropriate.

Relevant Directives

  1. [17]
    The parties agree that as Mr Hackett is a Senior Officer with the PSBA, his entitlements are provided for in the Senior Officers – Employment Conditions Directive 11/17.  Clause 10.1 of that Directive relevantly states:

10.1  Senior Officers are entitled to the benefits and allowances set out in the following award provisions and directives of the industrial relations Minister, as though senior officers were covered by such award provisions and directives, subject to the amendments and/or conditions noted below:

e)  the directives relating to long service, recreation (excluding clauses relating to Christmas/New Year compulsory closure), sick, study and examination, special and paid parental leave;

  1. [18]
    The parts of Minister for Industrial Relations Directive: Sick Leave Directive 06/20 (the Sick Leave Directive) referred to by the parties are:
  1.  Taking Leave

8.1  An officer's or employee's entitlement to sick leave is condition on them promptly notifying the employer of:

  1. (a)
    any illness that will cause them to be absent from work; and
  1. (b)
    the approximate period for which they will be absent.

8.2  An officer or employee is to submit a timely application for every absence where sick leave is sought, in a form determined by the chief executive.

8.3  An application for sick leave of more than three days is to be supported by documentation acceptable to the chief executive.

….

  1. Illness during other leave

10.1  An officer or employee who becomes ill after starting recreation leave, long service leave or paid parental leave may be granted sick leave for the period of the illness instead of the recreation leave, long service leave or parental leave that had already been approved provided the officer or employee:

  1. (a)
    submits a written application supported by acceptable documentation to the chief executive; and
  1. (b)
    the period of the illness is more than (3) working days.

  1. [19]
    The relevant section of Minister for Industrial Relations Directive: Long Service Leave Directive 11/18 (the Long Service Leave Directive) is:

18. Sick leave instead of long service leave

18.1 Sick leave may be granted instead of long service leave already approved where:

(b)  an employee becomes ill after starting the long service leave and submits a written application for sick leave, supported by a medical certificate or other evidence of the illness acceptable to the chief executive, and the period of illness is more than 3 days.

Respondent Submissions

  1. [20]
    The Respondent submissions address the grounds of appeal raised by Mr Hackett in his appeal notice.

Reasons provided by decision maker/Significance of and reliance on the timeliness of the request

  1. [21]
    The Respondent submits that the request was made under the Sick Leave Directive and draws attention to the word 'may' in that clause. Furthermore, the Sick Leave Directive further provides, at cl 8 that entitlement to sick leave is 'conditional' on the officer or employee 'promptly notifying the employer' of the illness and that the officer or employee is 'to submit a timely application'.
  1. [22]
    Mr Hackett submitted his application requesting to reverse a period of his long service leave (already taken) and in lieu, access sick leave.  The Respondent submit no specific dates were provided by Mr Hackett, however the application was accompanied by his medical certificate setting out the period of illness from 13 November 2020 and 7 March 2021.
  1. [23]
    The Respondent provided initial advice to Mr Hackett that his application would be supported from the date the medical certificate was issued, 18 January 2021.
  1. [24]
    On 2 March 2021, Mr Hackett's union representative wrote to Mr Hyde by email.[3] Key point of this email were:
  • The circumstance that sick leave be granted after a period of long service leave commences is specifically provided for in the Long Service Leave Directive at sub-cl 18.1(b);
  • there can be no question that the medical certificate from a specialist surgeon who has had the benefit of reviewing MRI's of Mr Hackett's shoulder would be considered acceptable to the Chief Executive;
  • the medical certificate was completed on 18 January 2021 at the first opportunity that Dr Fleming had to conclusively diagnose Mr Hackett's condition and determine what the expected incapacity would be;
  • given Dr Fleming first saw Mr Hackett on 13 November 2020 when he ordered the MRIs it was entirely open to Dr Fleming to determine that in his medical opinion Mr Hackett was suffering the same incapacity at that time; and
  • Together Union is seeking that Mr Hackett be provided with reasons the medical evidence was not acceptable to demonstrate incapacity for the full period and on what industrial basis the full leave period has not been approved.
  1. [25]
    Following this correspondence from Mr Hackett's union, the Respondent then forwarded further reasoning for the decision on 10 March 2021.[4]  That email includes reference to cl 8 of the Sick Leave Directive and states, in summary:
  • The medical certificate does not state that Mr Hackett was examined by Dr Fleming on 13 November, nor provided context as to why a medical certificate stating that incapacity commencing on 13 November 2020 was provided some three months later;
  • the delegate was not prepared to approve the recrediting of Long Service Leave due to the lack of information provided, in particular the lack of context around the reported date of the incapacity and the timing of the notification of injury/illness being provided;
  • it is clear that there has not been prompt or timely notification of the illness/injury in this instance.  The lack of notification has effectively ruled out any suitable/alternative duties arrangements that may have been initiated in consideration of the medical opinions;
  • to enable further consideration of Mr Hackett's application it would be beneficial for Dr Fleming to provide further and better particulars specifying the dates he examined Mr Hackett and the effect of the injury on this ability to perform the duties of his role in what/if any capacity.

Reliance on timeliness by the decision maker was unfair and unreasonable

  1. [26]
    The Respondent submit that the Sick Leave Directive is clear that the granting of sick leave is condition on that prompt notification from the employee of the injury/illness. Mr Hackett is a Senior Officer of the PSBA and holds a Level 2 HR Delegation.  Given his position, it cannot be argued that Mr Hackett was not aware of the requirement for timely notification prior to the granting of sick leave.

Relevant/Irrelevant considerations and fairly balancing factors considering in denying the request

  1. [27]
    The Respondent submit that Mr Hackett has provided no details as to how the decision maker inappropriately weighted relevant considerations and/or considered irrelevant material or how the decision maker failed to fairly balance factors in the decision making process.
  1. [28]
    The decision maker has considered the information provided by Mr Hackett against the requirements of the Sick Leave Directive.
  1. [29]
    Mr Hackett has failed to provide an explanation as to why he did not provide a timely application for sick leave in lieu of long service leave. Mr Hackett saw his treating doctor but did not obtain medical evidence at that point.  He was referred to an orthopaedic surgeon whom he saw on 13 November 2020 but did not provide medical evidence or notification of illness to the PSBA at that time.  Mr Hackett had multiple opportunities to provide timely notification of his injury and request to reverse his leave.
  1. [30]
    As General Manager, the decision maker must consider his obligations as outlined in s 25(1)(e) of the Public Service Act 2008 (the PS Act) that states:

25  The management and employment principles

  1. (1)
    Public service management is to be directed towards –

(e) managing public resources efficiently, responsibly and in a fully accountable way; and…

Unfair outcome

  1. [31]
    The Respondent submits that the requirement for timely notification is specified in the Sick Leave Directive and must be taken into consideration by the decision maker. The decision maker has given full consideration to the application and responses of Mr Hackett prior to making a decision to not approve the request to grant sick leave instead of long service leave prior to 18 January 2021. There has been no information provided by Mr Hackett as to why he did not provide notification of injury or illness to his employer nor present a medical certificate or other documentation certifying as to his incapacity prior to 18 January 2021.

Mr Hackett's submissions

  1. [32]
    Mr Hackett's submissions address the following contentions:
  1. a)
    Inadequate reasons have been provided in the decision of 27 May 2021.
  1. b)
    Timeliness is not a condition of a request to grant sick leave in lieu of long service leave already approved and the decision is therefore infected with error.
  1. c)
    The reliance on timeliness without adequate reasoning was arbitrary and unfair and unreasonable.
  1. d)
    The weighting of factors, considering the purpose of the instruments, was unfair and unreasonable and the outcome was unfair.
  1. e)
    The employer's failure, in the new decision, to respond to any of the details or information raised by the employee in response to the original decision and request for information was unreasonable, including the delay in the employer responding.

Insufficient reasons

  1. [33]
    Referring to a decision of Deputy President Merrell in Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203 (Morison), the Appellant uses similar analysis when assessing the adequacy of reasons required for administrative decisions under a directive and says that the failure to provide written reasons that comply with the standard of reasonable decision making set out in Morison renders the decision unfair and unreasonable.[5]
  1. [34]
    The Appellant submits that the decision provided by Mr Patterson fails to set out the substantial issues upon which the decision turned, the decision maker's understanding of the relevant law or directive provisions, any findings of fact upon which his conclusions depended, or any reasoning process which led him to those conclusions.  The decision was conveyed in terms of vague generality.

Timeliness of the request – as a condition of approval

  1. [35]
    The Appellant disputes the Respondent contention that cl 8 of the Sick Leave Directive applies to a request made under sub cl 10.1 of the Directive and says that correctly interpreted, cl 8 of the Sick Leave Directive does not apply to such a request.
  1. [36]
    The decision and the decision making process, infected with this error, is therefore unfair and unreasonable.
  1. [37]
    The Appellant says that the Directives are legislative instruments and are therefore to be interpreted in the same way as interpreting a statute.[6]
  1. [38]
    Clause 8 of the Sick Leave Directive provides for an entitlement to sick leave when certain conditions are met including prompt notification of an injury or illness and a timely application for sick leave.
  1. [39]
    Clause 10 of the Sick Leave Directive and sub-cl 18.1 of the Long Service Leave Directive both provide in almost identical terms that an employee may request sick leave in lieu of long service leave already granted and provides for different conditions of such a request. There is no requirement in these provisions for a timely notification.
  1. [40]
    The Appellant says that cl 8 and cl 10 are separate provisions, with different conditions. There is no valid reason to read into cl 10 words that are not there or to import into that provision any of the conditions in cl 8.  If the drafters of the instruments had intended for the entitlement in cl 10 to be subject to cl 8 then this would have been stated expressly. The Appellant contends that the words should be given their ordinary meaning in the absence of ambiguity or another reason to go beyond the express words of the provision.
  1. [41]
    In support of the above, the Appellant says that this interpretation is supported by the structure of the provisions in that cl 8 and cl 10 are separate provisions which do not refer to each other or required the existence of the other to be given full effect.  Further, the Long Service Leave Directive provides for an identical entitlement to cl 10 without reference to the Sick Leave Directive and would remain in operation even if the Sick Leave Directive was repealed.
  1. [42]
    Further to this, the Appellant says that cl 10 of the Sick Leave Directive makes approval for a request for sick leave in lieu of long service leave conditional on a written application accompanied by supporting documentation. Were cl 10 subject to cl 8 there would be no need for this condition in cl 10.
  1. [43]
    The Appellant observes that there is a logical reason for the difference between the conditions for each entitlement.  An application under cl 8 includes a notification of the employee's absence which requires the employer to reallocate the employee's duties or make other operational decisions.   A request to use accrued sick leave in lieu of other leave already approved is not a notification of absence and there are not such considerations.
  1. [44]
    The Appellant says that the decision maker had valid grounds under cl 10 to request additional medical information but that once that was provided, all conditions for the request had been met.

Timeliness of the request - discretion

  1. [45]
    The Appellant notes that in their submissions the Respondent highlights the word 'may' in cl 10 of the Sick Leave Directive, suggesting that the decision maker had discretion in making the decision but does not make submissions on this point.   In response, the Appellant contends that the exercise of discretion is not limitless and that exercise of discretion should always be reasonable.[7]
  1. [46]
    The Appellant says that the decision maker has failed to sufficiently explain his reasoning in relation to the significance of, and his reliance on, the timeliness of the request in the exercise of discretion.  The only reasoning provided in the original decision was that the employer had potentially been denied the capacity to provide suitable alternate duties in lieu of sick leave being taken. However, the updated medical evidence clearly shows that Mr Hackett was unfit for all work from 13 November 2020. Further to this, on receiving the medical advice on 18 January 2021, the employer granted the request from that date forward and there is no evidence that the employer would have acted differently in November had this information been available.
  1. [47]
    With reference to Gilmour v Waddell & Ors [2019] QSC 170  where the Appellant say it was held that 'the legal standard of unreasonableness is to be considered by reference to the subject matter, scope and purpose of the statute conferring the power', the Appellant further says that the purpose of the directives is to  'prescribe entitlements and conditions'.   The Appellant submits that these instruments are beneficial and must be interpreted accordingly.[8]
  1. [48]
    The Appellant says that it is contrary to the purpose of each directive, particularly when viewed together, for an employee to be forced to use long service leave and forgo their right to be paid for the unused portion of this entitlement, for a period in which they are not fit for duty and have an entitlement for sick leave.  The Appellant says that such an interpretation negates the benefit for which the instruments exist and is inconsistent with the provisions read as a whole and that this renders the decision unreasonable.

Weighing and balancing of factors

  1. [49]
    The Appellant says that the decisionmaker has failed to consider or does not appear to have placed appropriate weight on relevant factors such as: the decision denies Mr Hackett lawful accrued entitlements; the financial impacts of the decision on Mr Hackett; Mr Hackett's meritorious service of over 40 years; Mr Hackett's actions taken in good faith in providing significant advanced notice of his retirement.  These errors render the decision unfair and unreasonable.
  1. [50]
    With regard to the Respondent's submission that the decision maker's decision was reasonable because of his responsibilities under s 25(1)(e) PS Act, the Appellant contends that this provision also includes being responsible and fully accountable for employee entitlements and that the State is fully compliant with these law and regulations.
  1. [51]
    The Appellant says that the Respondent conveniently omits the other management and employment principles such as the requirement to promote the Government as an employer of choice and says that the weighting of some principles and the omission of consideration for others renders the decision unfair and unreasonable.
  1. [52]
    The Appellant submits that the outcome of the decision is also unfair.  There was no detriment to the Respondent from any delay in providing the medical information, which has been explained and the Appellant contends is reasonable. There is significant detriment to Mr Hackett which is being suffered with no clear rationale for this action being taken by his employer.

Failure to consider information and respond in a timely manner

  1. [53]
    The Appellant submits that the decision provided by Mr Patterson provides no new information, does not refer to or respond to the submissions made to the decision maker by Mr Hackett's union or respond to the updated medical information provided.  The decision appears to rely entirely on the reasoning in the original decision.  The Appellant says that is particularly unreasonable as the submissions made on behalf of Mr Hackett explicitly deal with the only concerns raised by the employer about the delay in the request and the medical certification.
  1. [54]
    In response to the Respondent's submissions asserting that there has been no new information provided by Mr Hackett  as to why he did not provide the information before 18 January 2021, the Appellant says that Mr Hackett raised various matters relating to the delay in the email of Mr Peatey on 2 March 2021, in discussion with Mr Hyde on 27 January 2021 and in the timeline attached to the appeal notice (which is undisputed by the Respondent).
  1. [55]
    The Respondent has considered the timeliness of Mr Hackett's request but has itself failed to respond to repeated requests for a review of the decision, or to respond to the new medical information or to discuss their concerns and has delayed the outcome of this matter until a week before the known date of retirement.  The Appellant contends that this failure to provide a fair process contributes to the decision being unfair and unreasonable.

Consideration of Submissions

Adequacy of review decision

  1. [56]
    The final review decision does not provide Mr Hackett with any detailed response to the matters he had raised.
  1. [57]
    On 10 March 2020, Mr Hackett, through his representative was asked for further information. On the basis of that email, it would be reasonable to conclude that the decision maker was seeking more information about why there was a delay in Mr Hackett providing the certificate, and more details/particulars from the doctor regarding the diagnosis and the impact of the diagnosis on Mr Hackett's capacity for work.
  1. [58]
    Having provided this information in response to that request, Mr Hackett deserved a decision which made it clear to him that this information had been thoughtfully considered and which explained clearly why it was that the decision was made.  No such decision was provided to him.
  1. [59]
    The review decision provided to Mr Hackett on 27 May 2021 gives me no indication or confidence that a proper review was undertaken or that the decision maker took the information provided by Mr Hackett into account. It certainly did not provide enough information for Mr Hackett to understand why the decision went against him.[9]
  1. [60]
    For these reasons, the review decision was not adequate.

The Sick Leave Directive and the Long Service Leave Directive

  1. [61]
    I agree with the Appellant's submissions regarding the parts of these Directives which apply to Mr Hackett's application to take sick leave in lieu of long service leave.
  1. [62]
    Clause 8 of the Sick Leave Directive clearly applies to employees who are currently in the workplace and who need to commence sick leave due to illness or injury.  It makes sense that such employees should be acting in a timely manner to provide a medical certificate and indicate the duration of leave they envisage will be required. That is so that arrangements can be made in relation to the work that person regularly performs.
  1. [63]
    Mr Hackett's situation is reflected in sub-cl 10.1(b) of the Sick Leave Directive.  This clause clearly sets out the requirements of a person who is currently on approved long service leave, becomes ill and wishes to apply to take sick leave rather than long service leave.  The Appellant is right in identifying that this clause is virtually identical to the Long Service Leave Directive clause dealing with the same matter. Neither of these clauses make reference to a requirement for medical information to be provided promptly.  
  1. [64]
    There is nothing in either Directive linking those relevant clauses to the quite separate cl 8.  Likewise, there is nothing in cl 8 to indicate that it applies to all clauses of the Directive.
  1. [65]
    The Respondent argues that the Sick Leave Directive must be read in its entirety and that it would be inconsistent with all other decisions concerning the application and granting of sick leave to not apply the conditions set out at sub-cl 8.1 when granting sick leave during periods of leave.  The Respondent submits that clause 8, 'Taking Leave' is a broad heading and that cl 10 is subject to cl 8 as a subset of 'taking leave'.
  1. [66]
    The Directive is made pursuant to s 54(1) of the PS Act and therefore satisfies as a statutory instrument.[10] Part 4 of the Statutory Instruments Act 1992 allows application of certain provisions of the Acts Interpretation Act 1954. The process of the construction of a statutory instrument and interpretation of a statute should be the same.[11]
  1. [67]
    To come to the outcome that the Respondent has arrived at would involve implying or reading words into the clauses of the Directives regarding access to sick leave while on long service leave.  This is not required as the clauses are quite clear on their own.  The clauses make reference to what the employee on long service leave needs to do in order to make an application.  The clauses require no further explanation or instruction.  The clauses clearly anticipate a situation where a person on long service leave becomes injured or ill and clearly allow for sick leave to be taken in lieu of long service leave where medical certification or other evidence is provided.
  1. [68]
    If sub-cl 10.1 were to be a subset of cl 8 of the Sick Leave Directive, it would grouped with the cl 8 itself and would be numbered as a part of cl 8.  It is not.  Clause 10 has its own heading and I do not accept it is to be a subset of cl 8.  Likewise, if there was an intention for cl 8 to apply to cl 10.1, I would expect there to be reference to it in the Long Service Leave Directive or for the sentiment of sub-cls 8.1 and 8.2 to be expressed in that Directive.
  1. [69]
    As to the reference to Morison where DP Merrell discusses consideration of an instrument as a whole and the consideration of surrounding provisions contained in the instrument, I note that in Morison, consideration was being given to the meaning and operation of a term.  There is no ambiguity in the meaning of the terms in the Sick Leave and Long Service Leave Directives.  However, even when read in context, clause 8 refers to  'Taking Leave'.  Mr Hackett was not 'taking sick leave'. Mr Hackett was taking 'other leave', hence the application of cl 10, 'Illness during other leave'.
  1. [70]
    To be clear, I find that while cls 8 and 10 of the Sick Leave Directive both deal with applications for sick leave, they do so differently because each clause exists for a different purpose.  If clause 10 did not specifically refer to the process to be adopted in making an application, there may be an argument to look elsewhere in the Directive for guidance on this.  However, in the case of this Directive, it is unnecessary.
  1. [71]
    Given timeliness is not a requirement to be considered in making application to take sick leave in lieu of long service leave in either of the Directives, it does not seem to me that it was a valid or reasonable consideration in making the decision to refuse Mr Hackett's request.
  1. [72]
    The word 'may' in the clause does signify a discretion is ascribed the decision maker. However, if a decision maker intends to exercise discretion to refuse an application, particularly in circumstances such as these, it must be exercised fairly and transparently.   In my view, neither of these things has occurred.
  1. [73]
    Even if timeliness were a factor to be taken into account either via the Sick Leave Directive or the application of discretion when considering the timeline of events, it makes perfect sense that Mr Hackett saw his specialist on 13 November 2020 and was awaiting a diagnosis before making a decision about applying for sick leave in lieu of long service leave.  Mr Hackett was unable to provide any detail about the nature and seriousness of the condition or the period of sick leave applied for without such a diagnosis. I do not find that it would be an unusual situation at the end of 2020 or early in 2021 for there to be some lengthy waiting times to see specialist surgeons or to book in for diagnostic imaging.  To that end, in circumstances where Mr Hackett was already on leave, I do not find the delay in making the application or providing the medical certificate unreasonable. Mr Hackett received his diagnosis in January and acted to make his application and provide the medical certificate soon thereafter.
  1. [74]
    At the time of the review decision the Respondent had in its possession the second medical certificate of Dr Fleming.  This medical certificate/letter appears to have been produced in direct response to the Respondent's request that Mr Hackett provide more detailed information about his injury and application.  I have no reason to doubt the veracity of its contents.  Mr Hackett was unfit for work from 13 November 2020.
  1. [75]
    I accept that if one relies on cl 8 of the Sick Leave Directive to underpin their application of other parts of the Directive, they may come to a conclusion that timeliness is a factor to consider.  However, for the forgoing reasons, I find that it was an error for the decision maker to rely on cl 8 in considering cl 10.1 of the Sick Leave Directive and cl 18 of the Long Service Leave Directive and as a result of this error the decision was not fair and reasonable.
  1. [76]
    The Respondent has known for some months that Mr Hackett is retiring on 7 June 2021 and that he was seeking to have this decision reviewed.  No explanation has been provided for the delay in considering his request for a review of the decision.
  1. [77]
    Mr Hackett met the requirements of the Directives when he provided a medical certificate and made application for sick leave in lieu of his long service leave.  There has been no reasonable explanation provided by the Respondent which would leave it open to the decision maker to exercise discretion and deny the application.
  1. [78]
    For the preceding reasons:

I am setting aside the review decision upholding the decision to deny Mr Hackett's request and substituting a decision that his long service leave be credited to him and that sick leave be taken in lieu of long service leave for the period from 13 November 2020 until 18 January 2021.

Footnotes

[1] Medical Certificate dated 18 January 2021 is attached to both the Appeal Notice, the Respondent submissions and

[2] Attached to appeal notice filed 1 June 2021.

[3] Attached to Appeal notice filed 1 June 2021 and Respondent submissions filed 2 June 2021.

[4] Email from Cameron Hurren, 10 March 2021, 13:17, Attachment 4, Respondent submissions.

[5] Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203;  see also Minister for Immigration and Citizenship v Li [2013] HCA 18, [76].

[6] Morison v State of Queensland [37]; Katae v State of Queensland & Anor [2018] QSC 225, [26].

[7] Dallmann v State of Queensland (Queensland Health) [2021] QIRC 9 at [41].

[8] Gilmour v Waddell & Ors [2019] QSC 170, per Ryan J at [208].

[9] Morison, [49].

[10]Statutory Instrument Act 1992, s 7.

[11] Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203 at footnote 15; citing Whittaker v Comcare (1998) 86 FCR 532, 543 (Drummond, Cooper and Finkelstein JJ). 

Close

Editorial Notes

  • Published Case Name:

    Hackett, Roderick James v State of Queensland (Public Safety Business Agency)

  • Shortened Case Name:

    Hackett, Roderick James v State of Queensland (Public Safety Business Agency)

  • MNC:

    [2021] QIRC 202

  • Court:

    QIRC

  • Judge(s):

    Member Pidgeon IC

  • Date:

    04 Jun 2021

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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